ARTICLE 1. DEFINITIONS AND APPLICATION OF CHAPTER.
§29A-1-1. Legislative findings and statement of purpose.
The Legislature finds and declares that administrative law and the
administrative practice and procedure of the various executive and
administrative officers, offices and agencies comprises a body of
law and policy which is voluminous, often formulated without
adequate public participation and collected and preserved for
public knowledge and use in an unacceptable and essentially
inaccessible fashion. The Legislature further finds that the
delegation of its legislative powers to other departments and
agencies of government requires of the Legislature that the rules
and regulations of such other departments and agencies, which have
the force and effect of law because of their legislative character,
should be carefully and extensively reviewed by the Legislature in
a manner properly respectful of the separation of powers but in
keeping with the legislative force and effect of such rules and
regulations. Accordingly the Legislature has and by this chapter
intends to fix by law uniform and settled administrative practices
and procedures, subject only to enumerated exceptions, for the
exercise of executive rule- making authority and for the exercise
by executive and administrative officers, offices and agencies of
lawfully delegated legislative power, with appropriate legislative
review of that exercise of such delegated legislative authority and
with established procedures for legislative oversight of the
exercise of executive rule-making authority.
In that light chapter twenty-nine-a of this code establishes, with
enumerated exceptions, procedures for rule making, declaratory
rulings by agencies and the conduct of contested administrative cases, together with a plan for the systematic preparation, public
consideration, orderly promulgation, preservation and public
availability of the body of law, policy and administrative
decisions within the purview of this chapter.
§29A-1-2. Definitions of terms used in this chapter.
For the purposes of this chapter:
(a) "Agency" means any state board, commission, department, office
or officer authorized by law to make rules or adjudicate contested
cases, except those in the legislative or judicial branches;
(b) "Contested case" means a proceeding before an agency in which
the legal rights, duties, interests or privileges of specific
parties are required by law or constitutional right to be
determined after an agency hearing, but does not include cases in
which an agency issues a license, permit or certificate after an
examination to test the knowledge or ability of the applicant where
the controversy concerns whether the examination was fair or
whether the applicant passed the examination and shall not include
rule making;
(c) "Interpretive rule" means every rule, as defined in subsection
(i) of this section, adopted by an agency independently of any
delegation of legislative power which is intended by the agency to
provide information or guidance to the public regarding the
agency's interpretations, policy or opinions upon the law enforced
or administered by it and which is not intended by the agency to be
determinative of any issue affecting private rights, privileges or
interests. An interpretive rule may not be relied upon to impose a civil or criminal sanction nor to regulate private conduct or the
exercise of private rights or privileges nor to confer any right or
privilege provided by law and is not admissible in any
administrative or judicial proceeding for such purpose, except
where the interpretive rule established the conditions for the
exercise of discretionary power as herein provided. However, an
interpretive rule is admissible for the purpose of showing that the
prior conduct of a person was based on good faith reliance on such
rule. The admission of such rule in no way affects any legislative
or judicial determination regarding the prospective effect of such
rule. Where any provision of this code lawfully commits any
decision or determination of fact or judgment to the sole
discretion of any agency or any executive officer or employee, the
conditions for the exercise of that discretion, to the extent that
such conditions are not prescribed by statute or by legislative
rule, may be established by an interpretive rule and such rule is
admissible in any administrative or judicial proceeding to prove
such conditions.
(d) "Legislative rule" means every rule, as defined in subsection
(i)(h) of this section, proposed or promulgated by an agency
pursuant to this chapter. Legislative rule includes every rule
which, when promulgated after or pursuant to authorization of the
Legislature, has (1) the force of law, or (2) supplies a basis for
the imposition of civil or criminal liability, or (3) grants or
denies a specific benefit. Every rule which, when effective, is
determinative on any issue affecting private rights, privileges or interests is a legislative rule. Unless lawfully promulgated as an
emergency rule, a legislative rule is only a proposal by the agency
and has no legal force or effect until promulgated by specific
authorization of the Legislature. Except where otherwise
specifically provided in this code, legislative rule does not
include (A) findings or determinations of fact made or reported by
an agency, including any such findings and determinations as are
required to be made by any agency as a condition precedent to
proposal of a rule to the Legislature; (B) declaratory rulings
issued by an agency pursuant to the provisions of section one,
article four of this chapter; (C) orders, as defined in subdivision
(e)(d) of this section; or (D) executive orders or proclamations
by the governor issued solely in the exercise of executive power,
including executive orders issued in the event of a public disaster
or emergency;(e) "Order" means the whole or any part of the final disposition
(whether affirmative, negative, injunctive or declaratory in form)
by any agency of any matter other than rulemaking;(f)(e) "Person" includes individuals, partnerships, corporations,
associations or public or private organizations of any character;(g)(f) "Procedural rule" means every rule, as defined in
subsection (I)(h) of this section, which fixes rules of
procedure, practice or evidence for dealings with or proceedings
before an agency, including forms prescribed by the agency;(h)(g) "Proposed rule" is a legislative rule, interpretive rule,
or a procedural rule which has not become effective pursuant to the provisions of this chapter or law authorizing its promulgation;(i)(h) "Rule" includes every regulation, standard or statement of
policy or interpretation of general application and future effect,
including the amendment or repeal thereof, affecting private
rights, privileges or interests, or the procedures available to the
public, adopted by an agency to implement, extend, apply, interpret
or make specific the law enforced or administered by it or to
govern its organization or procedure, but does not include
regulations relating solely to the internal management of the
agency, nor regulations of which notice is customarily given to the
public by markers or signs, nor mere instructions. Every rule shall
be classified as "legislative rule," "interpretive rule" or
"procedural rule," all as defined in this section, and shall be
effective only as provided in this chapter;(j) "Rule making" means the process for the formulation, amendment
or repeal of a rule as provided in this chapter.§29A-1-3. Application of chapter; limitations.
(a) The provisions of this chapter do not apply in any respect
whatever to executive orders of the governor, which orders to the
extent otherwise lawful shall be effective according to their
terms: Provided, That the executive orders shall be admitted to
record in the state register when and to the extent the governor
deems suitable and shall be included therein by the secretary of
state when tendered by the governor.
(b) Except as to requirements for filing in the state register, and
with the Legislature or its rule-making review committee, provided in this chapter or other law, the provisions of this chapter do not
apply in any respect whatever to the West Virginia board of
probation and parole, the public service commission, the board of
public works sitting as such and the secondary schools activities
commission: Provided, That rules of such agencies shall be filed in
the state register in the form prescribed by this chapter and be
effective no sooner than sixty consecutive days after being so
filed: Provided, however, That the rules promulgated by the state
colleges and universities shall only be filed with the higher
education governing boards: Provided further, That such agencies
may promulgate emergency rules in conformity with section fifteen,
article three of this chapter.
(c) The provisions of this chapter do not apply to rules relating
to or contested cases involving the conduct of inmates or other
persons admitted to public institutions, the open seasons and the
bag, creel, size, age, weight and sex limits with respect to the
wildlife in this state, the conduct of persons in military service
or the receipt of public assistance. Such rules shall be filed in
the state register in the form prescribed by this chapter and be
effective upon filing.
(d) Nothing herein shall be construed to affect, limit or expand
any express and specific exemption from this chapter contained in
any other statute relating to a specific agency, but such
exemptions shall be construed and applied in accordance with the
provisions of this chapter to effectuate any limitations on such
exemptions contained in any such other statute.§29A-1-4. Application of open governmental proceedings law.
(a) All meetings of an agency, board or commission of the executive
branch of government or of the legislative rule-making review
committee which may only be convened upon the presence of a
required quorum, and which are convened for the purpose of making
a decision or deliberating toward a decision as to the form and
substance of a rule, as defined in subsection (i), section two of
this article, are subject to the open governmental proceedings law
as set forth in article nine-a, chapter six of this code, except as
may otherwise be provided for in this section.
(b) When an agency, board or commission is considering the form and
substance of a rule or proposed rule, the informal occurrence of
(1) consultations between the governing members of the agency,
board or commission and its staff members, (2) deliberations by the
governing members, or (3) the engagement of a governing member or
members in the process of making a decision, does not constitute a
meeting within the meaning of article nine-a, chapter six of this
code when, during such stages, neither a quorum nor the convening
of the governing members of the agency, board or commission is
required.
(c) When the legislative rule-making review committee is
considering the form and substance of a rule or proposed rule, the
informal occurrence of (1) consultations between the members of the
committee and its staff members, (2) deliberations by the governing
members, or (3) the engagement of a governing member or members in
the process of making a decision, does not constitute a meeting within the meaning of article nine-a, chapter six of this code
when, during such stages, neither a quorum nor the convening of the
members of the committee is required.
(d) After public hearing or the close of the public comment period,
during which hearing or period an agency, board or commission has
received statements concerning the form and substance of a rule or
proposed rule, the agency, board or commission shall not permit the
filing or receipt of, nor shall it consider, any attempted ex parte
communications directed to it in the form of additional comment,
prior to the submission of its final agency-approved rule to the
legislative rule-making review committee pursuant to the provisions
of section eleven, article three of this chapter. Nothing contained
herein shall prohibit the agency, board or commission from
soliciting or receiving information relating to the rule or
proposed rule from the federal government, from the Legislature or
its members, or from another agency, board or commission of the
executive branch of the government of this state.
(e) After a proposed rule is approved for submission and is
submitted to the legislative rule-making review committee pursuant
to the provisions of section eleven, article three of this chapter,
the right of the people to assemble, to petition government, to
consult for the common good, to instruct their representatives, and
to apply for redress of grievances, in accordance with the
provisions of section sixteen, article III of the Constitution,
shall reserve to a person the right to freely communicate, ex parte
or otherwise, with the agency, board or commission or the legislative rule-making review committee in attempts to influence
deliberations or decision-making regarding the form and substance
of the proposed rule prior to authorization being granted for
promulgation of the rule.ARTICLE 2. STATE REGISTER.
§29A-2-1. Duty of the secretary of state.
It is the nondiscretionary, nondelegable duty of the secretary of
state to establish and maintain the state register hereby created,
and offer copies for subscription and public distribution in
accordance with the provisions of this article.§29A-2-2. State register created.
There is hereby created in the office of the secretary of state, a
public record to be known and denominated as the state register, to
be established, compiled, indexed and copied, and such copies
offered for subscription and distribution, in accordance with the
provisions of this article.§29A-2-3. Contents of state register.
The secretary of state shall receive and file in the state
register:
(a) Every notice of a proposed rule or a public hearing for the
finding of facts or public comment on a proposed rule.
(b) The text of every proposed rule and subsequent proposed
amendment thereto and fiscal notes attached thereto.
(c) Every determination of fact or judgment tendered by an agency
for inclusion therein and every notice of submission to the Legislature or its rule-making review committee made in conformity
with this chapter.
(d) Every executive order tendered by the governor.
(e) Every notice of and the text of any report or finding of the
legislative rule-making review committee and such other material as
may be tendered by the clerk or presiding officer of either house
of the Legislature for filing in the state register.
(f) Such other material related to administrative procedures and
actions as an agency may desire to make a public record or the
secretary of state may deem appropriate, or where required by law.
(g) Notice of and the text of any action by an agency of the
Legislature or its committees relative to the process of
promulgation of rules tendered to the secretary of state for
inclusion in the register
(h) Every other paper required by law to be filed in such register
or which may be filed therein in order to comply with any other
provision of law.§29A-2-4. Contents of state register deemed a public record.
Every paper filed in the state register shall be a public record
provable and admissible as evidence if otherwise relevant, of which
judicial notice may be taken, either under lawful certification or
by reason of duplication and distribution as a copy of the state
register in accordance with this article.§29A-2-5. Agency rules to be filed in state register; failure to
file. (a) Notwithstanding any filing prior to the effective date of this
section, each agency shall hereafter file in the state register a
certified copy of all of its lawfully adopted rules which are in
force on the date of such filing and all of its proposed rules
which have not become effective prior to the date of such filing.
All such rules and proposed rules shall be arranged, compiled,
numbered and indexed in accordance with the provisions of section
six of this article, and shall also include a designation of each
rule as either legislative rule, interpretive rule or procedural
rule. Any agency desiring to pursue promulgation of a rule proposed
prior to the effective date of this section but not then yet
effective, shall refile such proposed rule, following the procedure
set forth in article three: Provided, That it shall not be
necessary for the agency to again hold a public hearing to
determine facts or public comment, but in all other respects the
procedures provided for the promulgation of rules under this
section shall be complied with. On or before the first day of
January, one thousand nine hundred eighty-three, any other agency
required by law to file its rules in the state register in order
for such rules to be effective shall resubmit and refile such rules
in accordance with this section. If any agency fails to file a
certified copy of any rule or proposed rule in accordance with this
section on or before the first day of January, one thousand nine
hundred eighty-three, then such rule or proposed rule not so filed
shall be thereafter void and unenforceable and shall be of no
further force and effect except as to enforcement of its effective provisions for actions, causes or matters occurring prior to the
first day of January, one thousand nine hundred eighty-three.
(b) Except for such changes in the designation and numbering of a
rule, including numerical references within a rule, as are required
to comply with the provisions of section six of this article, no
legislative rule filed under the provisions of this section may be
amended in any way prior to such filing unless such amendment is
made in compliance with the requirements of article three of this
chapter.§29A-2-6. Format and numbering of agency rules filed in State
Register; electronic filing required beginning July 1, 2011; pilot
project.
(a) Each proposed rule filed by an agency requiring a notice to be
published in the State Register in accordance with the provisions
of section five, article three of this chapter shall include as its
initial provisions: (1) A statement identifying such rule as a
legislative rule, an interpretive rule or a procedural rule, as the
case may be; (2) a statement of such section, article and chapter
of this code to which such rule or any part thereof relates; and
(3) a statement of the section, article and chapter of this code or
any other provision of law which provides authority for the
promulgation of such rule. The agency shall be estopped from
relying on any authority for the promulgation of such rule which is
not stated therein in accordance with the requirements of this
subdivision.
(b) Each rule when filed, to be finally effective, shall have
attached thereto an abstract of its promulgation history prepared
by the agency showing the date of the filing in the State Register
of the content of, or notice of any procedure relating to, action
necessary under this chapter to cause such rules to be finally
effective: Provided, That any error or omission in such abstract
shall not affect the validity of any rule or action in respect
thereto.
(c) The Secretary of State shall prescribe by legislative rule a
standard size, format, numbering and indexing for rules to be filed
in the State Register, and may prescribe procedural or interpretive
rules to clarify and interpret the provisions in this section. The
Secretary of State shall refuse to accept for filing any rules
which do not comply with the specific provisions of this section.
The Secretary of State may also refuse to accept any rules which do
not comply with the rules issued pursuant to this section.
(d) Unless and until the Secretary of State prescribes otherwise by
rule issued and made effective under the provisions of subsection
(c) of this section, each rule filed in paper form in the State
Register shall be on white paper measuring eight and one-half
inches by eleven inches, typewritten and single-spaced, with a one
inch margin at the top, bottom and each side of each page, and
shall be reproduced photographically, or by xerography or other
duplication process. The Secretary of State may grant specific
exceptions to such requirements in the case of maps, diagrams and
exhibits, if the same may not be conveniently folded and fastened with the other pages of rules and in the case of rules which
incorporate a rule or regulation of a federal agency or other
organization which could not be submitted in the standard size and
format except at undue expense. Materials submitted for inclusion
in the State Register shall be fastened on the left side by two or
more fasteners attached through holes suitable for insertion into
ring binders.
(e)(1) Beginning July 1, 2011, unless otherwise authorized by the
Secretary of State, all agencies, boards and commissions having
rulemaking authority, shall file the provisions of and attachments
to all proposed rules required to be filed with the Secretary of
State, and any associated documents that are required to be
published in the State Register, exclusively in a electronic
format. The Secretary of State may exempt an agency, board or
commission from this requirement upon the Secretary of State's
determination that the filer is without the means to electronically
file the documents and to require electronic filing would place an
unreasonable burden on the agency, board or commission.
(2) On or before July 1, 2010, the Secretary of State shall propose
for promulgation legislative rules to establish a uniform system
for the electronic filing required by the provisions of this
section and to otherwise implement those provisions.
(3) During the calendar year 2010, through procedural rules, the
Secretary of State may institute a limited pilot project through
which proposed new rules or amendments to existing rules may be
filed electronically by any agency, board or commission under agreement with the Secretary of State. Participation by any agency,
board or commission in the pilot project is voluntary.§29A-2-7. Publication of State Register.
(a) The Legislature intends that the Secretary of State offer to
the public access to copies of the State Register and Code of State
Rules. The State Register, the Code of State Rules and other
publications shall be available in electronic format. A person may
request a printed copy of such from the Secretary of State for a
fee.
(b) All materials filed in the State Register shall be indexed
daily in chronological order of filing with a brief description of
the item filed and a columnar cross index to:
(1) Agency;
(2) Code citation to which it relates and by which it is filed in
the State Register; and
(3) Other information in the description or cross index as the
Secretary of State believes will aid a person in using the index.
(c) The Secretary of State shall provide with each update of the
Code of State Rules, a copy of the rule monitor and its cross index
which shows the rules that have become effective but not yet
distributed and the rules which may be superseded by a rule which
is being proposed. The copy of the rule monitor distributed with
the updates of the Code of State Rules shall state plainly that
this version of the rule monitor only shows the status of the
promulgation of rules as of the date of distribution of the update
of the Code of State Rules, and that to obtain the most recent status of the rules, the user should consult the rule monitor in
the most recent publication and instructions to users on how to use
the rule monitor determining the version of the rule in the Code of
State Rules currently in effect. This subsection is not to be
construed to require that subscribers to the updates of the Code of
State Rules receive a subscription to the State Register.
(d) The Secretary of State shall produce in an electronic format
the permanent biennial State Register, the chronological index and
other materials filed in the register, or any part by agency or
section, article or chapter for subscription at a cost including
labor, paper and postage, sufficient in the Secretary of State's
judgment to defray the expense of such publication. The Secretary
of State shall also offer, at least at monthly intervals,
supplements to the published materials listed above. Any
subscription for monthly supplements shall be offered annually and
shall include the chronological index and materials related to an
agency or code citation as a person may designate. A person may
limit the request to notices only, to notices and rules, or to
notices and proposed rules, or any combination thereof.
(e) Every two years, the Secretary of State shall offer for
purchase succeeding biennial permanent state registers which shall
consist of all rules effective on the date of publication selected
by the Secretary of State, which date shall be at least two years
from the last publication date, and materials filed in the State
Register relating to the rule. The cost of the succeeding biennial
permanent State Register and for the portion relating to any agency or any code citation which may be designated by a person shall be
fixed in the same manner specified in subsection (d) of this
section.
(f) The Secretary of State may omit from any duplication made
pursuant to subsection (e) of this section any rules the
publication of which would be unduly cumbersome, expensive or
otherwise inexpedient, if a copy of such rules is made available
from the original filing of such rule, at a price not exceeding the
cost of publication, and if the volume from which such rule is
omitted includes a notice in that portion of the publication in
which the rule would have been located, stating:
(1) The general subject matter of the omitted rule;
(2) Each code citation to which the omitted rule relates; and
(3) The means by which a copy of the omitted rule may be obtained.
(g) The Secretary of State may only propose changes to the
procedures outlined in the above subsection by proposing a
legislative rule under the provisions of section nine, article
three of this chapter.
(h) The Secretary of State shall promulgate for legislative
approval in accordance with the provisions of article three, of
this chapter a fees schedule for publications described in this
section.
(i) The fees and amounts collected for the sale of the State
Register, the Code of State Rules and other copies or data provided
by the Secretary of State shall be deposited in the state General
Revenue Fund and one half of the fees in the service fees and collections account established in accordance with section two,
article one, chapter fifty-nine of this code for the operations of
the office of the Secretary of State. The Secretary of State shall
dedicate sufficient resources from that fund or other funds to
provide the services required in this article.§29A-2-8. Publication of rules by agencies.
(a) No agency may duplicate copies of its rules for general
distribution except in accordance with this section. However, a
duly certified copy may be provided by the agency, at the cost of
reproduction, if requested and if not presently available from the
secretary of state. Whenever an agency desires multiple copies of
all or parts of its rules or other materials filed in the state
register, it shall purchase the same from the office of the
secretary of state: Provided, That when reproduction of the number
of copies desired by the agency can be accomplished at a lower cost
by the agency, it shall notify the secretary of state in writing of
such lower cost and, unless the secretary of state shall within ten
days agree to furnish such copies for an equal and lower cost and
do so within twenty days thereafter, may proceed at its cost to
acquire such copies elsewhere if otherwise authorized to do so by
law.
(b) Any published rules may be distributed only to those persons
who specifically request a copy of the rules and may not be
distributed in any manner to persons who have not requested a copy.
The agency may print or otherwise acquire only the number of copies
of any rule that it may reasonably anticipate will be requested by members of the general public.
(c) Except as provided in this section, no agency may expend funds
to alter the format or presentation of such rules from that
provided in the state register (except to adequately fasten and
bind the pages) or expend funds to compensate the office of
secretary of state to do so.
(d) Whenever for public convenience an agency deems it appropriate
to reproduce one or more rules for general public distribution in
some printed form, such as a booklet or other format not provided
by copying the state register, the agency shall give written notice
to the secretary of state and the legislative auditor of its
intention to do so, including therein the anticipated cost and the
source or account of appropriations therefor. Such notice shall be
recorded in the state register as other notices. After twenty days
shall have elapsed, the agency may proceed unless the secretary of
state shall have made a finding that such additional publication is
unnecessary or unduly expensive. Any such findings shall be served
on the agency and the governor and filed in the state register. The
governor may, within ten days after receiving such finding, order
such publication canceled or order such amendment thereof as is
appropriate in his judgment. Any such order of the governor shall
be effective until and unless the Legislature shall otherwise
provide. In the absence of such an order by the governor, the
agency may proceed in accord with its original notice of intent.§29A-2-9. Making orders and records available.
Every agency shall file in the state register all final orders, decisions and opinions in the adjudication of contested cases
except those required for good cause to be held confidential and
not cited as precedent. Except as otherwise required by statute,
matters of official record shall be made available for public
inspection pursuant to rules adopted in accordance with the
provisions of this chapter.ARTICLE 3. RULE MAKING.
§29A-3-1. Rules to be promulgated only in accordance with this
article.
In addition to other rule-making requirements imposed by law and
except to the extent specifically exempted by the provisions of
this chapter or other applicable law, and except as provided for in
article three-a of this chapter, every rule and regulation
(including any amendment of or rule to repeal any other rule) shall
be promulgated by an agency only in accordance with this article
and shall be and remain effective only to the extent that it has
been or is promulgated in accordance with this article.§29A-3-1a. Filing proposed amendments to an existing rule.
(a) Rules promulgated to amend existing rules may be filed on a
section by section basis without having to refile in the state
register all of the other sections of an existing series numbered
rule: Provided, That such filing shall list, by proper citation,
those sections, not amended, which are directly affected by those
sections amended: Provided, however, That amendments so filed shall
be accompanied by note of explanation as to the effect of such amendment and its relation to the existing rules.
(b) Rules promulgated to amend existing rules and filed as an
emergency rule may be filed on a section by section basis without
having to refile in the state register all of the other sections of
an existing series numbered rule: Provided, That such filing shall
list, by proper citation, those sections not amended, which are
directly affected by those sections amended.§29A-3-1b. Rules of the tax department.
Notwithstanding the provisions of section eight, article two of
this chapter, the tax commissioner may reproduce the same in his
state tax bulletin and may, upon request, distribute copies of the
proposed or emergency rule after such proposed or emergency rule
has been filed in the state register and may charge a reasonable
fee in an amount set to recover his cost of duplicating and mailing
the same. The moneys so received shall be deposited in the treasury
to the credit of the tax commissioner's account for printing,
office supplies or postage.§29A-3-2. Limitations on authority to exercise rule-making power.
(a) Except when, and to the extent, that this chapter or any other
provision of law now or hereafter made expressly exempts an agency,
or a particular grant of the rule-making power, from the provisions
of this article, every grant of rule-making authority to an
executive or administrative officer, office or agency, heretofore
provided, shall be construed and applied to be effective only:
(1) If heretofore lawfully exercised in accordance with the prior
provisions of this chapter and the resulting rule has not been revoked or invalidated by the provisions hereof or by the agency,
or
(2) If exercised in accordance with the provisions hereof.
(b) No executive or administrative agency shall be deemed to have
power and authority to promulgate a legislative rule without
compliance with this article unless: (1) The provision of this
code, heretofore or hereafter enacted, granting such power and
authority, expressly exempts its exercise from legislative
rule-making review prior to promulgation or (2) the grant of such
power and authority is exempted from the application of this
chapter by the express provisions of this chapter. To the extent
any such grant of power and authority, not so exempt, shall be
deemed to exceed the limits and provisions of this article, such
power and authority to promulgate legislative rules is hereby
revoked.§29A-3-3. Rules of procedure required.
In addition to other rule-making requirements imposed by law:
(a) Each agency shall adopt procedural rules governing the formal
and informal procedures prescribed or authorized by this chapter.
Procedural rules shall include rules of practice before the agency,
together with forms and instructions.
(b) To assist interested persons dealing with it, each agency,
shall so far as deemed practicable, supplement its rules or
regulations with descriptive statements of its procedures.§29A-3-4. Filing of proposed procedural rules and interpretive
rules.
(a) When an agency proposes a procedural rule or an interpretive
rule, the agency shall file in the state register a notice of its
action, including the text of the rule as proposed.
(b) All proposed rules filed under subsection (a) of this section
shall have a fiscal note attached itemizing the cost of
implementing the rules as they relate to this state and to persons
affected by the rules and regulations. Such fiscal note shall
include all information included in a fiscal note for either house
of the Legislature and a statement of the economic impact of the
rule on the state or its residents. The objectives of the rules
shall be clearly and separately stated in the fiscal note by the
agency issuing the proposed rules. No procedural or interpretive
rule shall be void or voidable by virtue of noncompliance with this
subsection.§29A-3-5. Notice of proposed rulemaking.
When an agency proposes to promulgate a rule other than an
emergency rule, it shall file with the secretary of state, for
publication in the state register, a notice of its action,
including therein any request for the submission of evidence to be
presented on any factual determinations or inquiries required by
law to promulgate such rule. At the time of filing the notice of
its action, the agency shall also file with the secretary of state
a copy of the full text of the rule proposed, and a fiscal note as
defined in subsection (b), section four of this article. If the
agency is considering alternative draft proposals, it may also file
with the secretary of state the full text of such draft proposals.
The notice shall fix a date, time and place for the receipt of
public comment in the form of oral statements, written statements
and documents bearing upon any findings and determinations which
are a condition precedent to the final approval by the agency of
the proposed rule, and shall contain a general description of the
issues to be decided. If no specific findings and determinations
are required as a condition precedent to the final approval by the
agency of the approved rule, the notice shall fix a date, time and
place for the receipt of general public comment on the proposed
rule. To comply with the public comment provisions of this section,
the agency may hold a public hearing or schedule a public comment
period for the receipt of written statements and documents, or
both.
If findings and determinations are a condition precedent to the
promulgation of such rule, then an opportunity for general public
comment on the merits of the rule shall be afforded after such
findings and determinations are made. In such event, notice of the
hearing or of the period for receiving public comment on the
proposed rule shall be attached to and filed as a part of the
findings and determinations of the agency when filed in the state
register.
In any hearing for public comment on the merits of the rule, the
agency may limit presentations to written material. The time, date
and place fixed in the notice shall constitute the last opportunity
to submit any written material relevant to any hearing, all of
which may be earlier submitted by filing with the agency. After the public hearing or the close of the public comment period, whichever
is later, the agency shall not permit the filing or receipt of, nor
shall it consider, any attempted ex parte communications directed
to it in the form of additional comment, prior to the submission of
its final agency-approved rule to the legislative rule-making
review committee pursuant to the provisions of section eleven of
this article.
The agency may also, at its expense, cause to be published as a
Class I legal publication in every county of the state any notice
required by this section.
Any citizen or other interested party may appear and be heard at
such hearings as are required by this section.§29A-3-6. Filing findings and determinations for rules in state
register; evidence deemed public record.
(a) Incident to fixing a date for public comment on a proposed
rule, the agency shall promulgate the findings and determinations
required as a condition precedent thereto, and state fully and
succinctly the reasons therefor and file such findings and
determinations in the state register. If the agency amends the
proposed rule as a result of the evidence or comment presented
pursuant to section five, such amendment shall be filed with a
description of any changes and statement listed for the amendment.
(b) The statement of reasons and a transcript of all evidence and
public comment received pursuant to notice are public records and
shall be carefully preserved by the agency and be open for public
inspection and copying for a period of not less than five years from the date of the hearing.§29A-3-7. Notice of hearings.
Notices of hearings required by sections five and six of this
article shall be filed in the state register not less than thirty
nor more than sixty days before the date of such hearing or the
last day specified therein for receiving written material. Any
hearing may be continued from time to time and place to place by
the agency which shall have the effect of extending the last day
for receipt of evidence or public comment. Notice of such
continuance shall be promptly filed thereafter in the state
register.§29A-3-8. Adoption of procedural and interpretive rules.
A procedural and interpretive rule, shall be considered by the
agency for adoption not later than six months after the close of
public comment and a notice of withdrawal or adoption shall be
filed in the state register within that period. Failure to file
such notice shall constitute withdrawal and the secretary of state
shall note such failure in the state register immediately upon the
expiration of the six-month period.
A procedural or interpretive rule may be amended by the agency
prior to final adoption without further hearing or public comment.
No such amendment may change the main purpose of the rule. If the
fiscal implications have changed since the rule was proposed, a new
fiscal note shall be attached to the notice of filing. Upon
adoption of the rule (including any such amendment) the agency
shall file the text of the adopted procedural or interpretive rule with its notice of adoption in the state register and the same
shall be effective on the date specified in the rule or thirty days
after such filing, whichever is later.§29A-3-9. Proposal of legislative rules.
When an agency proposes a legislative rule, other than an emergency
rule, it shall be deemed to be applying to the Legislature for
permission, to be granted by law, to promulgate such rule as
approved by the agency for submission to the Legislature or as
amended and authorized by the Legislature by law.
An agency proposing a legislative rule, other than an emergency
rule, after filing the notice of proposed rulemaking required by
the provisions of section five of this article, shall then proceed
as in the case of a procedural and interpretive rule to the point
of, but not including, final adoption. In lieu of final adoption,
the agency shall finally approve the proposed rule, including any
amendments, for submission to the Legislature and file such notice
of approval in the state register and with the legislative
rule-making review committee, within ninety days after the public
hearing was held or within ninety days after the end of the public
comment period required under section five of this article:
Provided, That upon receipt of a written request from an agency,
setting forth valid reasons why the agency is unable to file the
agency approved rule within the ninety-day time period, the
legislative rule-making review committee may grant the agency an
extension of time to file the agency approved rule.
Such final agency approval of the rule under this section is deemed to be approval for submission to the Legislature only and does not
give any force and effect to the proposed rule. The rule shall have
full force and effect only when authority for promulgation of the
rule is granted by an act of the Legislature and the rule is
promulgated pursuant to the provisions of section thirteen of this
article.§29A-3-10. Creation of a legislative rule-making review committee.
(a) There is hereby created a joint committee of the Legislature,
known as the legislative rule-making review committee, to review
all legislative rules of the several agencies and such other rules
as the committee deems appropriate. The committee shall be composed
of six members of the Senate, appointed by the president of the
Senate, and six members of the House of Delegates, appointed by the
speaker of the House of Delegates. In addition, the president of
the Senate and the speaker of the House of Delegates shall be ex
officio nonvoting members of the committee and shall designate the
cochairmen. Not more than four of the voting members of the
committee from each house shall be members of the same political
party: Provided, That in the event the membership of a political
party is less than fifteen percent in the House of Delegates or
Senate, then the membership of that political party from the
legislative house with less than fifteen percent membership may be
one from that house. The members shall serve until their successors
shall have been appointed as heretofore provided. Members of the
committee shall receive such compensation and expenses as provided
in article two-a, chapter four of this code. Such expenses and all other expenses, including those incurred in the employment of
legal, technical, investigative, clerical, stenographic, advisory
and other personnel shall be paid from an appropriation to be made
expressly for the legislative rule-making review committee, but if
no such appropriation be made, such expenses shall be paid from the
appropriation under "Account No. 103 for Joint Expenses," but no
expense of any kind whatever payable under said Account No. 103 for
joint expenses shall be incurred unless first approved by the joint
committee on government and finance. The committee shall meet at
any time, both during sessions of the Legislature and in the
interim.
(b) The committee may adopt such rules of procedure as it considers
necessary for the submission, presentation and consideration of
rules.§29A-3-11. Submission of legislative rules to the legislative
rule-making review committee.
(a) When an agency finally approves a proposed legislative rule for
submission to the Legislature, pursuant to the provisions of
section nine of this article, the secretary of the executive
department which administers the agency pursuant to the provisions
of article two, chapter five-f of this code shall submit to the
legislative rule-making review committee at its offices or at a
regular meeting of such committee fifteen copies of: (1) The full
text of the legislative rule as finally approved by the agency,
with new language underlined and with language to be deleted from
any existing rule stricken through but clearly legible; (2) a brief summary of the content of the legislative rule and a description
and a copy of any existing rule which the agency proposes to amend
or repeal; (3) a statement of the circumstances which require the
rule; (4) a fiscal note containing all information included in a
fiscal note for either house of the Legislature and a statement of
the economic impact of the rule on the state or its residents; (5)
one copy of any relevant federal statutes or regulations; and (6)
any other information which the committee may request or which may
be required by law. If the agency is an agency, board or commission
which is not administered by an executive department as provided
for in article two, chapter five-f of this code, the agency shall
submit the final agency-approved rule as required by this
subsection.
(b) The committee shall review each proposed legislative rule and,
in its discretion, may hold public hearings thereon. Such review
shall include, but not be limited to, a determination of:
(1) Whether the agency has exceeded the scope of its statutory
authority in approving the proposed legislative rule;
(2) Whether the proposed legislative rule is in conformity with the
legislative intent of the statute which the rule is intended to
implement, extend, apply, interpret or make specific;
(3) Whether the proposed legislative rule conflicts with any other
provision of this code or with any other rule adopted by the same
or a different agency;
(4) Whether the proposed legislative rule is necessary to fully
accomplish the objectives of the statute under which the rule was proposed for promulgation;
(5) Whether the proposed legislative rule is reasonable, especially
as it affects the convenience of the general public or of persons
particularly affected by it;
(6) Whether the proposed legislative rule could be made less
complex or more readily understandable by the general public; and
(7) Whether the proposed legislative rule was proposed for
promulgation in compliance with the requirements of this article
and with any requirements imposed by any other provision of this
code.
(c) After reviewing the legislative rule, the committee shall
recommend that the Legislature:
(1) Authorize the promulgation of the legislative rule; or
(2) Authorize the promulgation of part of the legislative rule; or
(3) Authorize the promulgation of the legislative rule with certain
amendments; or
(4) Recommend that the proposed rule be withdrawn.
The committee shall file notice of its action in the state register
and with the agency proposing the rule: Provided, That when the
committee makes the recommendations of subdivision (2), (3) or (4)
of this subsection, the notice shall contain a statement of the
reasons for such recommendation.
(d) When the committee recommends that a rule be authorized, in
whole or in part, by the Legislature, the committee shall instruct
its staff or the office of legislative services to draft a bill
authorizing the promulgation of all or part of the legislative rule and incorporating such amendments as the committee desires. If the
committee recommends that the rule not be authorized, it shall
include in its report a draft of a bill authorizing promulgation of
the rule together with a recommendation. Any draft bill prepared
under this section shall contain a legislative finding that the
rule is within the legislative intent of the statute which the rule
is intended to implement, extend, or apply or interpret and shall
be available for any member of the Legislature to introduce to the
Legislature.§29A-3-12. Submission of legislative rules to Legislature.
(a) No later than forty days before the sixtieth day of each
regular session of the Legislature, the cochairmen of the
legislative rule-making review committee shall submit to the clerk
of the respective houses of the Legislature copies of all proposed
legislative rules which have been submitted to and considered by
the committee pursuant to the provisions of section eleven of this
article and which have not been previously submitted to the
Legislature for study, together with the recommendations of the
committee with respect to such rules, a statement of the reasons
for any recommendation that a rule be amended or withdrawn and a
statement that a bill authorizing the legislative rule has been
drafted by the staff of the committee or by legislative services
pursuant to section eleven of this article. The cochairman of the
committee may also submit such rules at the direction of the
committee at any time before or during a special session in which
consideration thereof may be appropriate. The committee may withhold from its report any proposed legislative rule which was
submitted to the committee fewer than two hundred twenty-five days
before the end of the regular session. The clerk of each house
shall submit the report to his or her house at the commencement of
the next session.
All bills introduced authorizing the promulgation of a rule may be
referred by the speaker of the House of Delegates and by the
president of the Senate to appropriate standing committees of
therespective houses for further consideration or the matters may
be otherwise dealt with as each house or its rules provide. The
Legislature may by act authorize the agency to adopt a legislative
rule incorporating the entire rule or may authorize the agency to
adopt a rule with any amendments which the Legislature shall
designate. The clerk of the house originating such act shall
forthwith file a copy of any bill of authorization enacted with the
secretary of state and with the agency proposing such rule and the
clerk of each house may prepare and file a synopsis of legislative
action during any session on any proposed rule submitted to the
house during such session for which authority to promulgate was not
by law provided during such session. In acting upon the separate
bills authorizing the promulgation of rules, the Legislature may,
by amendment or substitution, combine the separate bills of
authorization insofar as the various rules authorized therein are
proposed by agencies which are placed under the administration of
one of the single separate executive departments identified under
the provisions of section two, article one, chapter five-f of this code or the Legislature may combine the separate bills of
authorization by agency or agencies within an executive department.
In the case of rules proposed for promulgation by an agency which
is not administered by an executive department pursuant to the
provisions of article two of said chapter, the separate bills of
authorization for the proposed rules of that agency may, by
amendment or substitution, be combined. The foregoing provisions
relating to combining separate bills of authorization according to
department or agency are not intended to restrict the permissible
breadth of bills of authorization and do not preclude the
Legislature from otherwise combining various bills of authorization
which have a unity of subject matter. Any number of provisions may
be included in a bill of authorization, but the single object of
the bill shall be to authorize the promulgation of proposed
legislative rules.
(b) If the Legislature during its regular session disapproves all
or part of any legislative rule which was submitted to it by the
legislative rule-making review committee during such session, no
agency may thereafter issue any rule or directive or take other
action to implement such rule or part thereof unless and until
otherwise authorized to do so, except that the agency may resubmit
the same or similar proposed rule to the legislative rule-making
review committee in accordance with the provisions of section
eleven of this article.
(c) Nothing herein shall be construed to prevent the Legislature by
law from authorizing, or authorizing and directing, an agency to promulgate legislative rules not proposed by the agency or upon
which some procedure specified in this chapter is not yet complete.
(d) Whenever the Legislature is convened by proclamation of the
governor, upon his or her own initiative or upon application of the
members of the Legislature, or whenever a regular session of the
Legislature is extended or convened by the vote or petition of its
members, the Legislature may by act enacted during such
extraordinary or extended session authorize, in whole or in part,
any legislative rule, whether submitted to the legislative
rule-making review committee or not, if legislative action on such
rule during such session is a lawful order of business.
(e) As a part of any act that amends chapter sixty-four of this
code, authorizing the promulgation of a proposed legislative rule
or rules, the Legislature may also provide, by general language or
with specificity, for the disapproval of rules not approved or
acted upon by the Legislature.
(f) Whenever a date is required by this section to be computed in
relation to the end of a regular session of the Legislature, such
date shall be computed without regard to any extensions of such
session occasioned solely by the proclamation of the governor.
(g) Whenever a date is required to be computed from or is fixed by
the first day of a regular session of the Legislature, it shall be
computed or fixed in the year one thousand nine hundred
eighty-four, and each fourth year thereafter without regard to the
second Wednesday of January of such years.§29A-3-13. Adoption of legislative rules; effective date.
(a) Except as the Legislature may by law otherwise provide, within
sixty days after the effective date of an act authorizing
promulgation of a legislative rule, the rule shall be promulgated
only in conformity with the provisions of law authorizing and
directing the promulgation of such rule. In the case of a rule
proposed by an agency which is administered by an executive
department pursuant to the provisions of article two, chapter
five-f of this code, the secretary of the department shall
promulgate the rule as authorized by the Legislature. In the case
of an agency which is not subject to administration by the
secretary of an executive department, the agency which proposed the
rule for promulgation shall promulgate the rule as authorized by
the Legislature.
(b) A legislative rule authorized by the Legislature shall become
effective thirty days after such filing in the state register, or
on the effective date fixed by the authorizing act or if none is
fixed by law, such later date not to exceed ninety days, as is
fixed by the agency.
(c) The secretary of state shall note in the state register the
effective date of an authorized and promulgated legislative rule,
and shall promptly publish the duly promulgated rule in a code of
state rules maintained by his or her office.§29A-3-14. Withdrawal or modification of proposed rules.
(a) Any legislative rule proposed by an agency may be withdrawn by
the agency any time before passage of a law authorizing or
authorizing and directing its promulgation, but no such action shall be construed to affect the validity, force or effect of a law
enacted authorizing or authorizing and directing the promulgation
of an authorized legislative rule or exercising compliance with
such law. The agency shall file a notice of any such action in the
state register.
(b) At any time before a proposed legislative rule has been
submitted by the legislative rule-making review committee to the
Legislature pursuant to the provisions of section twelve of this
article, the agency may modify the proposed rule to meet the
objections of the committee. The agency shall file in the state
register a notice of its modifying action including a copy of the
modified rule, but shall not be required to comply with any
provisions of this article requiring opportunity for public comment
or taking of evidence with respect to such modification. If a
legislative rule has been withdrawn, modified and then resubmitted
to such committee, the rule shall be considered to have been
submitted to such committee on the date of such resubmission.§29A-3-15. Emergency legislative rules; procedure for promulgation;
definition.
(a) Any agency with authority to propose legislative rules may,
without hearing, find that an emergency exists requiring that
emergency rules be promulgated and promulgate the same in
accordance with this section. Such emergency rules, together with
a statement of the facts and circumstances constituting the
emergency, shall be filed with the secretary of state, and a notice
of such filing shall be published in the state register. Such emergency rules shall become effective upon the approval of the
secretary of state in accordance with section fifteen-a of this
article or upon the approval of the attorney general in accordance
with section fifteen-b or upon the forty-second day following such
filing, whichever occurs first. Such emergency rules may adopt,
amend or repeal any legislative rule, but the circumstances
constituting the emergency requiring such adoption, amendment or
repeal shall be stated with particularity and be subject to de novo
review by any court having original jurisdiction of an action
challenging their validity. Fourteen copies of the rules and of the
required statement shall be filed immediately with the secretary of
state and one copy shall be filed immediately with the legislative
rule-making review committee.
An emergency rule shall be effective for not more than fifteen
months and shall expire earlier if any of the following occurs:
(1) The secretary of state, acting under the authority provided for
in section fifteen-a of this article, or the attorney general,
acting under the authority provided for in section fifteen-b of
this article, disapproves the emergency rule because: (A) The
emergency rule or an amendment to the emergency rule exceeds the
scope of the law authorizing or directing the promulgation thereof;
(B) an emergency does not exist justifying the promulgation of the
emergency rule; or (C) the emergency rule was not promulgated in
compliance with the provisions of this section. An emergency rule
may not be disapproved pursuant to the authority granted by
paragraphs (A) or (B) of this subdivision on the basis that the secretary of state or the attorney general disagrees with the
underlying public policy established by the Legislature in enacting
the supporting legislation. An emergency rule which would otherwise
be approved as being necessary to comply with a time limitation
established by this code or by a federal statute or regulation may
not be disapproved pursuant to the authority granted by paragraphs
(A) or (B) of this subdivision on the basis that the agency has
failed to file the emergency rule prior to the date fixed by such
time limitation. When the supporting statute specifically directs
an agency to promulgate an emergency rule, or specifically finds
that an emergency exists and directs the promulgation of an
emergency rule, the emergency rule may not be disapproved pursuant
to the authority granted by paragraph (B) of this subdivision. An
emergency rule may not be disapproved on the basis that the
Legislature has not specifically directed an agency to promulgate
the emergency rule, or has not specifically found that an emergency
exists and directed the promulgation of an emergency rule,
(2) The agency has not previously filed and fails to file a notice
of public hearing on the proposed rule within thirty days of the
date the proposed rule was filed as an emergency rule; in which
case the emergency rule expires on the thirty-first day.
(3) The agency has not previously filed and fails to file the
proposed rule with the legislative rule-making review committee
within ninety days of the date the proposed rule was filed as an
emergency rule; in which case the emergency rule expires on the
ninety-first day.
(4) The Legislature has authorized or directed promulgation of an
authorized legislative rule dealing with substantially the same
subject matter since such emergency rule was first promulgated, and
in which case the emergency rule expires on the date the authorized
rule is made effective.
(5) The Legislature has, by law, disapproved of such emergency
rule; in which case the emergency rule expires on the date the law
becomes effective.
(b) Any amendment to an emergency rule made by the agency shall be
filed in the state register and does not constitute a new emergency
rule for the purpose of acquiring additional time or avoiding the
expiration dates in subdivision (2), (3), (4) or (5), subsection
(a) of this section: Provided, That such emergency amendment shall
become effective upon the approval of the secretary of state in
accordance with section fifteen-a of this article or upon approval
of the attorney general in accordance with section fifteen-b of
this article or upon the forty-second day following such filing,
whichever occurs first.
(c) Once an emergency rule expires due to the conclusion of fifteen
months or due to the effect of subdivision (2), (3), (4) or (5),
subsection (a) of this section, the agency may not refile the same
or similar rule as an emergency rule.
(d) The provision of this section shall not be used to avoid or
evade any provision of this article or any other provisions of this
code, including any provisions for legislative review and approval
of proposed rules. Any emergency rule promulgated for any such purpose may be contested in a judicial proceeding before a court of
competent jurisdiction.
(e) The legislative rule-making review committee may review any
emergency rule to determine (1) whether the emergency rule or an
amendment to the emergency rule exceeds the scope of the law
authorizing or directing the promulgation thereof; (2) whether
there exists an emergency justifying the promulgation of such
emergency rule; and (3) whether the emergency rule was promulgated
in compliance with the requirements and prohibitions contained in
this section. The committee may recommend to the agency, the
Legislature, or the secretary of state such action as it may deem
proper.
(f) For the purposes of this section, an emergency exists when the
promulgation of an emergency rule is necessary (1) for the
immediate preservation of the public peace, health, safety or
welfare, (2) to comply with a time limitation established by this
code or by a federal statute or regulation, or (3) to prevent
substantial harm to the public interest.§29A-3-15a. Disapproval of emergency rules and amendments to
emergency rules by the secretary of state; judicial review.
(a) Upon the filing of an emergency rule or filing of an amendment
to an emergency rule by an agency, under the provisions of section
fifteen of this article, by any agency, except for the secretary of
state, the secretary of state shall review such rule or such
amendment and, within forty-two days of such filing, shall issue a
decision as to whether or not such emergency rule or such amendment to an emergency rule should be disapproved. An emergency rule filed
by the secretary of state shall be reviewed by the attorney general
as provided for in section fifteen-b of this article.
(b) The secretary of state shall disapprove an emergency rule or an
amendment to an emergency rule if he determines:
(1) That the emergency rule or an amendment to the emergency rule
exceeds the scope of the law authorizing or directing the
promulgation thereof; or
(2) That an emergency does not exist justifying the promulgation of
the emergency rule or the filing of an amendment to the emergency
rule; or
(3) That the emergency rule or an amendment to the emergency rule
was not promulgated in compliance with the provisions of section
fifteen of this article.
(c) If the secretary of state determines, based upon the contents
of the rule or the supporting information filed by the agency, that
the emergency rule should be disapproved, he may disapprove such
rule without further investigation, notice or hearing. If, however,
the secretary of state concludes that the information submitted by
the agency is insufficient to allow a proper determination to be
made as to whether the emergency rule should be disapproved, he may
make further investigation, including, but not limited to,
requiring the agency or other interested parties to submit
additional information or comment or fixing a date, time and place
for the taking of evidence on the issues involved in making a
determination under the provisions of this section.
(d) If the secretary of state determines, based upon the contents
of the amendment to an emergency rule or the supporting information
filed by the agency, that the amendment to the emergency rule
should be disapproved, he may disapprove such amendment without
further investigation, notice or hearing. If, however, the
secretary of state concludes that the information submitted by the
agency is insufficient to allow a proper determination to be made
as to whether the amendment should be disapproved, he may make
further investigation, including, but not limited to, requiring the
agency or other interested parties to submit additional information
or comment or fixing a date, time and place for the taking of
evidence on the issues involved in making a determination under the
provisions of this section.
(e) The determination of the secretary of state shall be reviewable
by the supreme court of appeals under its original jurisdiction,
based upon a petition for a writ of mandamus, prohibition or
certiorari, as appropriate. Such proceeding may be instituted by:
(1) The agency which promulgated the emergency rule;
(2) A member of the Legislature; or
(3) Any person whose personal property interests will be
significantly affected by the approval or disapproval of the
emergency rule by the secretary of state.§29A-3-15b. Disapproval of emergency rules and amendments to
emergency rules by the attorney general; judicial review.
(a) Upon the filing of an emergency rule or filing of an amendment
to an emergency rule by the secretary of state under the provisions of section fifteen of this article, the attorney general shall
review such rule or such amendment and, within forty-two days of
such filing, shall issue a decision as to whether or not such
emergency rule or such amendment to an emergency rule should be
disapproved.
(b) The attorney general shall disapprove an emergency rule or an
amendment to an emergency rule if he determines:
(1) That the emergency rule or an amendment to the emergency rule
exceeds the scope of the law authorizing or directing the
promulgation thereof; or
(2) That an emergency does not exist justifying the promulgation of
the emergency rule or the filing of an amendment to the emergency
rule; or
(3) That the emergency rule or an amendment to the emergency rule
was not promulgated in compliance with the provisions of section
fifteen of this article.
(c) If the attorney general determines, based upon the contents of
the rule or the supporting information filed by the secretary of
state, that the emergency rule should be disapproved, he may
disapprove such rule without further investigation, notice or
hearing. If, however, the attorney general concludes that the
information submitted by the secretary of state is insufficient to
allow a proper determination to be made as to whether the emergency
rule should be disapproved, he may make further investigation,
including, but not limited to, requiring the secretary of state or
other interested parties to submit additional information or comment or fixing a date, time and place for the taking of evidence
on the issues involved in making a determination under the
provisions of this section.
(d) If the attorney general determines, based upon the contents of
the amendment to an emergency rule or the supporting information
filed by the agency, that the amendment to the emergency rule
should be disapproved, he may disapprove such amendment without
further investigation, notice or hearing. If, however, the attorney
general concludes that the information submitted by the agency is
insufficient to allow a proper determination to be made as to
whether the amendment should be disapproved, he may make further
investigation, including, but not limited to, requiring the agency
or other interested parties to submit additional information or
comment or fixing a date, time and place for the taking of evidence
on the issues involved in making a determination under the
provisions of this section.
(e) The determination of the attorney general shall be reviewable
by the supreme court of appeals under its original jurisdiction,
based upon a petition for a writ of mandamus, prohibition or
certiorari, as appropriate. Such proceeding may be instituted by:
(1) The secretary of state;
(2) A member of the Legislature; or
(3) Any person whose personal property interests will be
significantly affected by the approval or disapproval of the
emergency rule by the attorney general.§29A-3-16. Legislative review of procedural rules, interpretive rules and existing legislative rules.
The legislative rule-making review committee may review any
procedural rules, interpretive rules or existing legislative rules
and may make recommendations concerning such rules to the
Legislature, or to the agency, or to both the Legislature and the
agency.§29A-3-17. Prior rules.
Any rule lawfully promulgated prior to the effective date of this
chapter shall remain in full force and effect until:
(1) Such rule is expressly made ineffective by the provisions of
this chapter, or
(2) Such rule should expire by reason of failure to refile the same
as provided in section five of article two, or expires pursuant to
its own terms and provisions lawfully made before the effective
date of this section, or
(3) Such rule is repealed by the lawful act of the agency, in
conformity with this chapter, or
(4) Such rule is invalidated by an act of the Legislature or the
force and effect of another law.§29A-3-18. Severability of legislative rules.
Unless there is a provision in a legislative rule specifying that
the provisions thereof shall not be severable, the provisions of
every legislative rule, whether enacted before or subsequent to the
effective date of this section, shall be severable so that if any
provision of any rule section or amendment thereto is held to be unconstitutional or void, the remaining provisions of the rule
shall remain valid, unless the court finds the valid provisions are
so essentially and inseparably connected with, and so dependent
upon, the unconstitutional or void provision that the court cannot
presume the Legislature would have enacted the remaining valid
provisions without the unconstitutional or void one, or unless the
court finds the remaining valid provisions, standing alone, are
incomplete and are incapable of being executed in accordance with
the legislative intent: Provided, That if any legislative rule has
its own severability clause, then that severability clause shall
govern and control with respect to that section, in lieu of the
provisions of this section. The provisions of this section shall be
fully applicable to all future amendments to legislative rules,
with like effect as if the provisions of this section were set
forth in extenso and every such amendment were reenacted as a part
thereof, unless such amendment to the legislative rule contains its
own severability clause.ARTICLE 3A. HIGHER EDUCATION RULE MAKING.
§29A-3A-1. Definitions.
As used in this article:
(a) "Commission" means the legislative oversight commission on
education accountability;
(b) "Board" means the higher education policy commission or the
chancellor as defined in chapter eighteen-b of this code, or both,
or any successor agency or officer. "Board" also means any other
entity directed by this code to promulgate a rule or rules in accordance with this article, but this definition shall apply
solely for the purpose of promulgating the rule or rules required
to be promulgated in accordance with this article.§29A-3A-2. Rules to be promulgated only in accordance with this
article.
In addition to other rule-making requirements imposed by law and
except to the extent specifically exempted by the provisions of
this chapter or other applicable law, every rule and regulation
(including any amendment of or rule to repeal any other rule) shall
be promulgated by the board only in accordance with this article
and shall be and remain effective only to the extent that it has
been or is promulgated in accordance with this article.§29A-3A-3. Limitations on authority to exercise rule-making power.
(a) Except when, and to the extent, that this chapter or any other
provision of law now or hereafter made expressly exempts the board,
or a particular grant of the rule-making power, from the provisions
of this article, every grant of rule-making authority to the board
heretofore provided, shall be construed and applied to be effective
only:
(1) If heretofore lawfully exercised in accordance with the prior
provisions of this chapter and the resulting rule has not been
revoked or invalidated by the provisions hereof or by the board; or
(2) If exercised in accordance with the provisions hereof.
(b) The board shall not be deemed to have the power and authority
to promulgate a legislative rule without compliance with this article unless: (1) The provision of this code, heretofore or
hereafter enacted, granting such power and authority, expressly
exempts its exercise from legislative rule-making review prior to
promulgation or (2) the grant of such power and authority is
exempted from the application of this chapter by the express
provisions of this chapter. To the extent any such grant of power
and authority, not so exempt, shall be deemed to exceed the limits
and provisions of this article, such power and authority to
promulgate legislative rules is hereby revoked.§29A-3A-4. Rules of procedure required.
In addition to other rule-making requirements imposed by law:
(a) The board shall adopt procedural rules governing the formal and
informal procedures prescribed or authorized by this chapter.
Procedural rules shall include rules of practice before the board,
together with forms and instructions.
(b) To assist interested persons dealing with it, the board, shall
so far as deemed practicable, supplement its rules or regulations
with descriptive statements of its procedures.§29A-3A-5. Filing of proposed procedural rules and interpretive
rules.
(a) When the board proposes a procedural rule or an interpretive
rule, the agency shall file in the state register a notice of its
action, including the text of the rule as proposed.
(b) All proposed rules filed under subsection (a) of this section
shall have a fiscal note attached itemizing the cost of implementing the rules as they relate to this state and to persons
affected by the rules and regulations. Such fiscal note shall
include all information included in a fiscal note for either house
of the Legislature and a statement of the economic impact of the
rule on the state or its residents. The objectives of the rules
shall be clearly and separately stated in the fiscal note by the
agency issuing the proposed rules. No procedural or interpretive
rule shall be void or voidable by virtue of noncompliance with this
subsection.§29A-3A-6. Notice of proposed rule making.
When the board proposes to promulgate a rule other than an
emergency rule, it shall file with the secretary of state, for
publication in the state register, a notice of its action,
including therein any request for the submission of evidence to be
presented on any factual determinations or inquiries required by
law to promulgate such rule. At the time of filing the notice of
its action, the board shall also file with the secretary of state
a copy of the full text of the rule proposed, and a fiscal note as
defined in subsection (b), section five of this article. If the
board is considering alternative draft proposals, it may also file
with the secretary of state the full text of such draft proposals.
The notice shall fix a date, time and place for the receipt of
public comment in the form of oral statements, written statements,
and documents bearing upon any findings and determinations which
are a condition precedent to the final approval by the board of the
proposed rule, and shall contain a general description of the issues to be decided. If no specific findings and determinations
are required as a condition precedent to the final approval by the
board of the approved rule, the notice shall fix a date, time and
place for the receipt of general public comment on the proposed
rule.
If findings and determinations are a condition precedent to the
promulgation of such rule, then an opportunity for general public
comment on the merits of the rule shall be afforded after such
findings and determinations are made. In such event, notice of the
hearing, or of the period for receiving public comment on the
proposed rule shall be attached to and filed as a part of the
findings and determinations of the board when filed in the state
register.
In any hearing for public comment on the merits of the rule, the
board may limit presentations to written material. The time, date
and place fixed in the notice shall constitute the last opportunity
to submit any written material relevant to any hearing, all of
which may be earlier submitted by filing with the board. After the
public hearing or the close of the public comment period, whichever
is later, the board shall not permit the filing or receipt of, nor
shall it consider, any attempted ex parte communications directed
to it in the form of additional comment, prior to the submission of
its final board-approved rule to the legislative oversight
commission on education accountability pursuant to the provisions
of section twelve of this article.
The board may also, at its expense, cause to be published as a Class I legal publication in every county of the state any notice
required by this section.
Any citizen or other interested party may appear and be heard at
such hearings as are required by this section.§29A-3A-7. Filing findings and determinations for rules in state
register; evidence deemed public record.
(a) Incident to fixing a date for public comment on a proposed
rule, the board shall promulgate the findings and determinations
required as a condition precedent thereto, and state fully and
succinctly the reasons therefor and file such findings and
determinations in the state register. If the board amends the
proposed rule as a result of the evidence or comment presented
pursuant to section five, such amendment shall be filed with a
description of any changes and statement listed for the amendment.
(b) The statement of reasons and a transcript of all evidence and
public comment received pursuant to notice are public records and
shall be carefully preserved by the board and be open for public
inspection and copying for a period of not less than five years
from the date of the hearing.§29A-3A-8. Notice of hearings.
Notices of hearings required by sections six and seven of this
article shall be filed in the state register not less than thirty
nor more than sixty days before the date of such hearing or the
last day specified therein for receiving written material. Any
hearing may be continued from time to time and place to place by the board which shall have the effect of extending the last day for
receipt of evidence or public comment. Notice of such continuance
shall be promptly filed thereafter in the state register.§29A-3A-9. Adoption of procedural and interpretive rules.
A procedural and interpretive rule, shall be considered by the
board for adoption not later than six months after the close of
public comment and a notice of withdrawal or adoption shall be
filed in the state register within that period. Failure to file
such notice shall constitute withdrawal and the secretary of state
shall note such failure in the state register immediately upon the
expiration of the six-month period.
A procedural or interpretive rule may be amended by the board prior
to final adoption without further hearing or public comment. No
such amendment may change the main purpose of the rule. If the
fiscal implications have changed since the rule was proposed, a new
fiscal note shall be attached to the notice of filing. Upon
adoption of the rule (including any such amendment) the board shall
file the text of the adopted procedural or interpretive rule with
its notice of adoption in the state register and the same shall be
effective on the date specified in the rule or thirty days after
such filing, whichever is later.§29A-3A-10. Proposal of legislative rules.
When the board proposes a legislative rule, other than an emergency
rule, it shall be deemed to be applying to the Legislature for
permission, to be granted by law, to promulgate such rule as
approved by the board for submission to the Legislature or as amended and authorized by the Legislature by law.
When proposing a legislative rule, other than an emergency rule,
and after filing the notice of proposed rule-making required by the
provisions of section five of this article, the board shall then
proceed as in the case of a procedural and interpretive rule to the
point of, but not including, final adoption. In lieu of final
adoption, the board shall finally approve the proposed rule,
including any amendments, for submission to the Legislature and
file such notice of approval in the state register and with the
legislative oversight commission on education accountability.
Such final approval of the rule under this section is deemed to be
approval for submission to the Legislature only and does not give
any force and effect to the proposed rule. The rule shall have full
force and effect only when authority for promulgation of the rule
is granted by an act of the Legislature and the rule is promulgated
pursuant to the provisions of section fourteen of this article.§29A-3A-11. Creation of a legislative oversight commission on
education accountability.
(a) There is hereby created a joint commission of the Legislature
known as the legislative oversight commission on education
accountability to review all legislative rules of the board and
such other rules as the commission deems appropriate. The
commission shall be composed of six members of the Senate appointed
by the president of the Senate and six members of the House of
Delegates appointed by the speaker of the House of Delegates. No
more than five of the six members appointed by the president of the Senate and the speaker of the House of Delegates, respectively, may
be members of the same political party. In addition, the president
of the Senate and the speaker of the House of Delegates shall be ex
officio nonvoting members of the commission and shall designate the
cochairmen. At least one of the Senate members and one of the House
members shall be members of the committee on education of the
Senate and House, respectively, and at least one of the Senate
members and at least one of the House members shall be a member of
the committee on finance of the Senate and House, respectively. The
members shall serve until their successors shall have been
appointed as heretofore provided. Members of the commission shall
receive such compensation and expenses as provided in article
two-a, chapter four of this code. Such expenses and all other
expenses including those incurred in the employment of legal,
technical, investigative, clerical,stenographic, advisory and other
personnel shall be paid from an appropriation to be made expressly
for the legislative oversight commission on education
accountability, but if no such appropriation be made, such expenses
shall be paid from the appropriation under "Account No. 103 for
Joint Expenses", but no expense of any kind whatever payable under
said account for joint expenses shall be incurred unless first
approved by the joint committee on government and finance. The
commission shall meet at any time both during sessions of the
Legislature and in the interim.
(b) The commission may adopt such rules of procedure as it
considers necessary for the submission, presentation and consideration of rules.§29A-3A-11a. Additional powers and duties; subpoena powers.
(a) In addition to the powers and duties conferred upon the
commission pursuant to the provisions of this article, the
commission shall make a continuing investigation, study and review
of the practices, policies and procedures of the board and of any
and all matters related to education in the state and shall make
annual reports to the Legislature of the results of such
investigation, study and review.
(b) These reports shall describe and evaluate in a concise manner:
(1) The major activities of the board for the fiscal year
immediately past, including important policy decisions reached on
initiatives undertaken during that year, especially as such
activities, decisions and initiatives relate to the implementation
of (1) the constitutional requirement of providing a thorough and
efficient education to the children of this state and (2) the
objective of improving the quality of education at all levels in
this state.
(2) Other information considered by the commission to be important,
including recommendations for statutory, fiscal or other reform and
reasons for such recommendations.
Further, these reports may specify in what manner said practices,
policies and procedures may or should be modified to satisfy said
constitutional requirement and to improve the quality of education
at all levels in this state.
The commission may meet as often as may be necessary and employ such professional, clerical and technical personnel as it considers
necessary to perform effectively the duties herein prescribed.
(c) The commission shall conduct a study to determine whether the
bureaucracies of the state board of education and each county board
of education are of such size and complexity that they do not best
serve the educational needs of the children of the state. The
commission may request assistance from the legislative auditor to
conduct this study.
(d) For purposes of carrying out its duties, the commission is
hereby empowered and authorized to examine witnesses and to
subpoena such persons and books, records, documents, papers or any
other tangible things as it believes should be examined to make a
complete investigation. All witnesses appearing before the
commission shall testify under oath or affirmation, and any member
of the commission may administer oaths or affirmations to such
witnesses. To compel the attendance of witnesses at such hearings
or the production of any books, records, documents, papers or any
other tangible thing, the commission is hereby empowered and
authorized to issue subpoenas, signed by one of the cochairmen, in
accordance with section five, article one, chapter four of this
code. Such subpoenas shall be served by any person authorized by
law to serve and execute legal process and service shall be made
without charge. Witnesses subpoenaed to attend hearings shall be
allowed the same mileage and per diem as is allowed witnesses
before any petit jury in this state.
If any person subpoenaed to appear at any hearing shall refuse to appear or to answer inquiries there propounded, or shall fail or
refuse to produce books, records, documents, papers or any other
tangible thing within his control when the same are demanded, the
commission shall report the facts to the circuit court of Kanawha
County or any other court of competent jurisdiction and such court
may compel obedience to the subpoena as though such subpoena had
been issued by such court in the first instance.§29A-3A-12. Submission of legislative rules to the legislative
oversight commission on education accountability.
(a) When the board finally approves a proposed legislative rule for
submission to the Legislature, pursuant to the provisions of
section ten of this article, the board shall submit to the
legislative oversight commission on education accountability at its
offices or at a regular meeting of such commission fifteen copies
of the following:
(1) The full text of the legislative rule as finally approved by
the board, with new language underlined and with language to be
deleted from any existing rule stricken-through but clearly
legible;
(2) A brief summary of the content of the legislative rule and a
description and a copy of any existing rule which the agency
proposes to amend or repeal;
(3) A statement of the circumstances which require the rule;
(4) A fiscal note containing all information included in a fiscal
note for either house of the Legislature and a statement of the
economic impact of the rule on the state or its residents; and (5) Any other information which the commission may request or which may
be required by law.
(b) The commission shall review each proposed legislative rule and,
in its discretion, may hold public hearings thereon. Such review
shall include, but not be limited to, a determination of:
(1) Whether the board has exceeded the scope of its statutory
authority in approving the proposed legislative rule;
(2) Whether the proposed legislative rule is in conformity with the
legislative intent of the statute which the rule is intended to
implement, extend, apply, interpret or make specific;
(3) Whether the proposed legislative rule conflicts with any other
provision of this code or with any other rule adopted by the same
or a different agency;
(4) Whether the proposed legislative rule is necessary to fully
accomplish the objectives of the statute under which the proposed
rule was promulgated;
(5) Whether the proposed legislative rule is reasonable, especially
as it affects the convenience of the general public or of persons
particularly affected by it;
(6) Whether the proposed legislative rule could be made less
complex or more readily understandable by the general public; and
(7) Whether the proposed legislative rule was promulgated in
compliance with the requirements of this article and with any
requirements imposed by any other provision of this code.
(c) After reviewing the legislative rule, the commission shall
recommend that the Legislature:
(1) Authorize the board to promulgate the legislative rule; or
(2) Authorize the board to promulgate part of the legislative rule;
or
(3) Authorize the board to promulgate the legislative rule with
certain amendments; or
(4) Recommend that the rule be withdrawn.
The commission shall file notice of its action in the state
register and with the board proposing the rule: Provided, That when
the commission makes the recommendations of subdivision (2), (3) or
(4) of this subsection, the notice shall contain a statement of the
reasons for such recommendation.
(d) When the commission recommends that a rule be authorized, in
whole or in part, by the Legislature, the commission shall instruct
its staff or the office of legislative services to draft a bill
authorizing the board to promulgate all or part of the legislative
rule. If the commission recommends that the rule not be authorized,
it shall include in its report a draft of a bill authorizing
promulgation of the rule together with a recommendation. Any draft
bill prepared under this section shall contain a legislative
finding that the rule is within the legislative intent of the
statute which the rule is intended to implement, extend, apply or
or interpret and shall be available for any member of the
Legislature to introduce to the Legislature.§29A-3A-13. Submission of legislative rules to Legislature.
(a) No later than forty days before the sixtieth day of each
regular session of the Legislature, the cochairmen of the legislative oversight commission on education accountability shall
submit to the clerk of the respective houses of the Legislature
copies of all proposed legislative rules which have been submitted
to and considered by the commission pursuant to the provisions of
section eleven of this article and which have not been previously
submitted to the Legislature for study, together with the
recommendations of the commission with respect to such rules, a
statement of the reasons for any recommendation that a rule be
withdrawn, and a statement that a bill authorizing the legislative
rule has been drafted by the staff of the commission or by
legislative services pursuant to section twelve of this article.
The cochairman of the commission may also submit such rules at the
direction of the commission at any time before or during a special
session in which consideration thereof may be appropriate. The
commission may withhold from its report any proposed legislative
rule which was submitted to the commission fewer than two hundred
ten days before the end of the regular session. The clerk of each
house shall submit the report to his house at the commencement of
the next session.
All bills introduced authorizing the promulgation of a rule may be
referred by the speaker of the House of Delegates and by the
president of the Senate to appropriate standing committees of the
respective houses for further consideration or the matters may be
otherwise dealt with as each house or its rules provide. The
Legislature may by act authorize the board to adopt a legislative
rule incorporating the entire rule. The clerk of the house originating such act shall forthwith file a copy of any bill
enacted in contemplation of this section in the state register and
with the board and the clerk of each house may prepare and file a
synopsis of legislative action during any session on any proposed
rule submitted to the house during such session for which authority
to promulgate was not by law provided during such session.
(b) If the Legislature fails during its regular session to act upon
all or part of any legislative rule which was submitted to it by
the legislative oversight commission on education accountability
during such session, the board may not thereafter issue any rule or
directive or take other action to implement such rule or part
thereof unless and until otherwise authorized to do so.
(c) Nothing herein shall be construed to prevent the Legislature by
law from authorizing or authorizing and directing the board to
promulgate legislative rules not proposed by the board or upon
which some procedure specified in this chapter is not yet complete.
(d) Whenever the Legislature is convened by proclamation of the
governor, upon his own initiative or upon application of the
members of the Legislature, or whenever a regular session of the
Legislature is extended or convened by the vote or petition of its
members, the Legislature may by act enacted during such
extraordinary or extended session authorize, in whole or in part,
any legislative rule whether submitted to the legislative oversight
commission on education accountability, or not, if legislative
action on such rule during such session is a lawful order of
business.
(e) Whenever a date is required by this section to be computed in
relation to the end of a regular session of the Legislature, such
date shall be computed without regard to any extensions of such
session occasioned solely by the proclamation of the governor.
(f) Whenever a date is required to be computed from or is fixed by
the first day of a regular session of the Legislature, it shall be
computed or fixed in the year one thousand nine hundred
eighty-four, and each fourth year thereafter without regard to the
second Wednesday of January of such years.§29A-3A-14. Adoption of legislative rules; effective date.
(a) Except as the Legislature may by law otherwise provide, within
sixty days after the effective date of an act authorizing
promulgation of a legislative rule, the board shall promulgate the
rule only in conformity with the provisions of law authorizing and
directing the promulgation of such rule.
(b) A legislative rule authorized by the Legislature shall become
effective thirty days after such filing in the state register, or
on the effective date fixed by the authorizing act or if none is
fixed by law, such later date not to exceed ninety days, as is
fixed by the board.
(c) The secretary of state shall note in the state register the
effective date of an authorized and promulgated legislative rule,
and shall file such legislative rule in the state register in lieu
of the proposed legislative rule previously filed pursuant to
section seven of this article.§29A-3A-15. Withdrawal or modification of proposed rules.
(a) Any legislative rule proposed by the board may be withdrawn any
time before passage of a law authorizing or authorizing and
directing its promulgation, but no such action shall be construed
to affect the validity, force or effect of a law enacted
authorizing or authorizing and directing the promulgation of an
authorized legislative rule or exercising compliance with such law.
The board shall file a notice of any such action in the state
register.
(b) At any time before a proposed legislative rule has been
submitted by the legislative oversight commission on education
accountability to the Legislature pursuant to the provisions of
section thirteen of this article, the board may modify the proposed
rule to meet the objections of the commission. The board shall file
in the state register a notice of its modifying action including a
copy of the modified rule, but shall not be required to comply with
any provisions of this article requiring opportunity for public
comment or taking of evidence with respect to such modification. If
a legislative rule has been withdrawn, modified and then
resubmitted to such commission, the rule shall be considered to
have been submitted to such commission on the date of such
resubmission.§29A-3A-16. Emergency legislative rules; procedure for
promulgation; definition.
(a) The board may, without hearing, find that an emergency exists
requiring that emergency rules be promulgated and promulgate the
same in accordance with this section. Such emergency rules, together with a statement of the facts and circumstances
constituting the emergency, shall be filed in the state register
and shall become effective immediately upon such filing. Such
emergency rules may adopt, amend or repeal any legislative rule,
but the circumstances constituting the emergency requiring such
adoption, amendment or repeal shall be stated with particularity
and be subject to de novo review by any court having original
jurisdiction of an action challenging their validity. Fifteen
copies of the rules and of the required statement shall be filed
forthwith with the legislative oversight commission on education
accountability.
An emergency rule shall be effective for not more than fifteen
months and shall expire earlier if any of the following occurs:
(1) The secretary of state, acting under the authority provided for
in section sixteen-a of this article, disapproves the emergency
rule because: (A) The emergency rule or an amendment to the
emergency rule exceeds the scope of the law authorizing or
directing the promulgation thereof; (B) an emergency does not exist
justifying the promulgation of the emergency rule; or (C) the
emergency rule was not promulgated in compliance with the
provisions of this section. An emergency rule may not be
disapproved pursuant to the authority granted by paragraphs (A) or
(B) of this subdivision on the basis that the secretary of state
disagrees with the underlying public policy established by the
Legislature in enacting the supporting legislation. An emergency
rule which would otherwise be approved as being necessary to comply with a time limitation established by this code or by a federal
statute or regulation may not be disapproved pursuant to the
authority granted by paragraphs (A) or (B) of this subdivision on
the basis that the board has failed to file the emergency rule
prior to the date fixed by such time limitation. When the
supporting statute specifically directs the board to promulgate an
emergency rule, or specifically finds that an emergency exists and
directs the promulgation of an emergency rule, the emergency rule
may not be disapproved pursuant to the authority granted by
paragraph (B) of this subdivision. An emergency rule may not be
disapproved on the basis that the Legislature has not specifically
directed the board to promulgate the emergency rule, or has not
specifically found that an emergency exists and directed the
promulgation of an emergency rule.
(2) The board has not previously filed and fails to file a notice
of public hearing on the proposed rule within sixty days of the
date the proposed rule was filed as an emergency rule; in which
case the emergency rule expires on the sixty-first day.
(3) The board has not previously filed and fails to file the
proposed rule with the legislative oversight commission on
education accountability within one hundred eighty days of the date
the proposed rule was filed as an emergency rule; in which case the
emergency rule expires on the one hundred eighty-first day.
(4) The Legislature has authorized or directed promulgation of an
authorized legislative rule dealing with substantially the same
subject matter since such emergency rule was first promulgated, and in which case the emergency rule expires on the date the authorized
rule is made effective.
(5) The Legislature has, by law, disapproved of such emergency
rule; in which case the emergency rule expires on the date the law
become effective.
(b) Any amendment to an emergency rule made by the board shall be
filed in the state register and does not constitute a new emergency
rule for the purpose of acquiring additional time or avoiding the
expiration dates in subdivision (2), (3), (4) or (5), subsection
(a) of this section.
(c) Once an emergency rule expires due to the conclusion offifteen
months or due to the effect of subdivision (2), (3), (4) or (5),
subsection (a) of this section, the board may not refile the same
or similar rule as an emergency rule.
(d) Emergency legislative rules currently in effect under the prior
provisions of this section may be refiled under the provisions of
this section.
(e) The provision of this section shall not be used to avoid or
evade any provision of this article or any other provisions of this
code, including any provisions for legislative review and approval
of proposed rules. Any emergency rule promulgated for any such
purpose may be contested in a judicial proceeding before a court of
competent jurisdiction.
(f) The legislative oversight commission on education
accountability may review any emergency rule to determine (1)
whether the board has exceeded the scope of its statutory authority in promulgating the emergency rule; (2) whether there exists an
emergency justifying the promulgation of such rule; and (3) whether
the rule was promulgated in compliance with the requirements and
prohibitions contained in this section. The commission may
recommend to the board, the Legislature, or the secretary of state
such action as it may deem proper.
(g) For the purposes of this section, an emergency exists when the
promulgation of a rule is necessary for the immediate preservation
of the public peace, health, safety or welfare or is necessary to
comply with a time limitation established by this code or by a
federal statute or regulation or to prevent substantial harm to the
public interest.§29A-3A-16a. Disapproval of emergency rules by the secretary of
state; judicial review.
(a) Upon the filing of an emergency rule by the board, under the
provisions of section sixteen of this article, the secretary of
state shall review such rule and, within forty-two days of such
filing, shall issue a decision as to whether or not such emergency
rule should be disapproved.
(b) The secretary of state shall disapprove an emergency rule if he
determines:
(1) That the emergency rule or an amendment to the emergency rule
exceeds the scope of the law authorizing or directing the
promulgation thereof; or
(2) That an emergency does not exist justifying the promulgation of
the emergency rule or the filing of an amendment to the emergency rule; or
(3) That the emergency rule or an amendment to the emergency rule
was not promulgated in compliance with the provisions of section
sixteen of this article.
(c) If the secretary of state determines, based upon the contents
of the rule or the supporting information filed by the board, that
the emergency rule should be disapproved, he may disapprove such
rule without further investigation, notice or hearing. If, however,
the secretary of state concludes that the information submitted by
the board is insufficient to allow a proper determination to be
made as to whether the emergency rule should be disapproved, he may
make further investigation, including, but not limited to,
requiring the board or other interested parties to submit
additional information or comment or fixing a date, time and place
for the taking of evidence on the issues involved in making a
determination under the provisions of this section.
(d) The determination of the secretary of state shall be reviewable
by the supreme court of appeals under its original jurisdiction,
based upon a petition for a writ of mandamus, prohibition of
certiorari, as appropriate. Such proceeding may be instituted by:
(1) The board;
(2) A member of the Legislature; or
(3) Any person whose personal property interests will be
significantly affected by the approval or disapproval of the
emergency rule by the secretary of state.§29A-3A-17. Legislative review of procedural rules, interpretive rules and existing legislative rules.
The legislative oversight commission on education accountability
may review any procedural rules, interpretive rules or existing
legislative rules and may make recommendations concerning such
rules to the Legislature, or to the board, or to both the
Legislature and the board.§29A-3A-18. Prior rules.
Any rule lawfully promulgated prior to the effective date of this
chapter shall remain in full force and effect until:
(1) Such rule is expressly made ineffective by the provisions of
this chapter; or
(2) Such rule should expire by reason of failure to refile the same
as provided in section five of article two, or expires pursuant to
its own terms and provisions lawfully made before the effective
date of this section; or
(3) Such rule is repealed by the lawful act of the board, in
conformity with this chapter; or
(4) Such rule is invalidated by an act of the Legislature or the
force and effect of another law.§29A-3A-19. Severability of legislative rules.
Unless there is a provision in a legislative rule specifying that
the provisions thereof shall not be severable, the provisions of
every legislative rule, whether enacted before or subsequent to the
effective date of this section, shall be severable so that if any
provision of any rule section or amendment thereto is held to be unconstitutional or void, the remaining provisions of the rule
shall remain valid, unless the court finds the valid provisions are
so essentially and inseparably connected with, and so dependent
upon, the unconstitutional or void provision that the court cannot
presume the Legislature would have enacted the remaining valid
provisions without the unconstitutional or void one, or unless the
court finds the remaining valid provisions, standing alone, are
incomplete and are incapable of being executed in accordance with
the legislative intent: Provided, That if any legislative rule has
its own severability clause, then that severability clause shall
govern and control with respect to that section, in lieu of the
provisions of this section. The provisions of this section shall be
fully applicable to all future amendments to legislative rules,
with like effect as if the provisions of this section were set
forth in extenso and every such amendment were reenacted as a part
thereof, unless such amendment to the legislative rule contains its
own severability clause.ARTICLE 3B. STATE BOARD OF EDUCATION RULE MAKING.
§29A-3B-1. Definitions.

As used in this article:
(a) "Commission" means the legislative oversight commission on
education accountability created in section eleven, article three-a
of this chapter.
(b) "Board" means the West Virginia board of education.§29A-3B-2. Rules to be promulgated in accordance with this article.
In addition to other rule-making requirements imposed by law and
except to the extent specifically exempted by the provisions of
this chapter or other applicable law, every rule and regulation
(including any amendment of or rule to repeal any other rule) shall
be promulgated by the board in accordance with this article and
shall be and remain effective only to the extent that it has been
or is promulgated in accordance with this article.§29A-3B-3. Rules of procedure required.
In addition to other rule-making requirements imposed by law:
(a) The board shall adopt procedural rules governing the formal and
informal procedures prescribed or authorized by this chapter.
Procedural rules shall include rules of practice before the board,
together with forms and instructions.
(b) To assist interested persons dealing with it, the board shall,
so far as deemed practicable, supplement its rules or regulations
with descriptive statements of its procedures.§29A-3B-4. Filing of proposed rules.
(a) When the board proposes a procedural, interpretive or
legislative rule, the agency shall file in the state register a
notice of its action, including the text of the rule as proposed.
(b) All proposed rules filed under subsection (a) of this section
shall have a fiscal note attached itemizing the cost of
implementing the rules as they relate to this state and to persons
affected by the rules and regulations. Such fiscal note shall
include all information included in a fiscal note for either house
of the Legislature and a statement of the economic impact of the rule on the state or its residents. The objectives of the rules
shall be clearly and separately stated in the fiscal note by the
agency issuing the proposed rules. No procedural or interpretive
rule shall be void or voidable by virtue of noncompliance with this
subsection.§29A-3B-5. Notice of proposed rule making.
When the board proposes to promulgate a rule other than an
emergency rule, it shall file in the state register a notice of its
action, including a text of the rule proposed, a fiscal note as
defined in subsection (b) of section four, and any request for the
submission of evidence to be presented on any factual
determinations or inquiries required by law to promulgate such
rule. If the board is considering alternative draft proposals, it
may include the text thereof.
The notice shall fix a date, time and place for the taking of
evidence for any findings and determinations which are a condition
precedent to promulgation of the proposed rule and contain a
general description of the issues to be decided. If no findings and
determinations are required as a condition precedent to
promulgation, the notice shall fix a date, time and place for
receipt of public comment on such proposed rule.
If findings and determinations are a condition precedent to the
promulgation of such rule, then an opportunity for public comment
on the merits of the rule shall be afforded after such findings and
determinations are made. In such event, notice of the hearing, or
of the period for receiving public comment on the proposed rule, shall be attached to and filed as a part of the findings and
determinations of the board when filed in the state register.
In any hearing for public comment on the merits of the rule, the
board may limit presentations to written material. The time, date
and place fixed in the notice shall constitute the last opportunity
to submit any written material relevant to any hearing, all of
which may be earlier submitted by filing with the board.
The board may also, at its expense, cause to be published as a
Class I legal publication in every county of the state, any notice
required by this section.
Any citizen or other interested party may appear and be heard at
such hearings as are required by this section.§29A-3B-6. Filing findings and determinations for rules in state
register; evidence deemed public record.
(a) Incident to fixing a date for public comment on a proposed
rule, the board shall promulgate the findings and determinations
required as a condition precedent thereto, and state fully and
succinctly the reasons therefor and file such findings and
determinations in the state register. If the board amends the
proposed rule as a result of the evidence or comment presented
pursuant to section five, such amendment shall be filed with a
description of any changes and statement listed for the amendment.
(b) The statement of reasons and a transcript of all evidence and
public comment received pursuant to notice are public records and
shall be carefully preserved by the board and be open for public
inspection and copying for a period of not less than five years from the date of the hearing.§29A-3B-7. Notice of hearings.
Notices of hearings required by section five of this article shall
be filed in the state register not less than thirty nor more than
sixty days before the date of such hearing or the last day
specified therein for receiving written material. Any hearing may
be continued from time to time and place to place by the board
which shall have the effect of extending the last day for receipt
of evidence or public comment. Notice of such continuance shall be
promptly filed thereafter in the state register.§29A-3B-8. Adoption of rules.
A rule shall be considered by the board for adoption not later than
six months after the close of public comment and a notice of
withdrawal or adoption shall be filed in the state register within
that period. Failure to file such notice shall constitute
withdrawal and the secretary of state shall note such failure in
the state register immediately upon the expiration of the six-month
period.
A rule may be amended by the board prior to final adoption without
further hearing or public comment. No such amendment may change the
main purpose of the rule. If the fiscal implications have changed
since the rule was proposed, a new fiscal note shall be attached to
the notice of filing. Upon adoption of the rule (including any such
amendment), the board shall file the text of the adopted rule with
its notice of adoption in the state register and the same shall be
effective on the date specified in the rule or thirty days after such filing, whichever is later.§29A-3B-9. Submission of legislative rules to the Legislative
Oversight Commission on Education Accountability.
(a) When the board proposes a legislative rule, the board shall
submit the following to the Legislative Oversight Commission on
Education Accountability: (1) The full text of the legislative rule
as proposed by the board and filed with the office of the Secretary
of State, with new language underlined and with language to be
deleted from any existing rule stricken through but clearly
legible; (2) a brief summary of the content of the legislative rule
and a description and a copy of any existing rule which the agency
proposes to amend or repeal; (3) a statement of the circumstances
which require the rule; (4) a fiscal note containing all
information included in a fiscal note for either house of the
Legislature and a statement of the economic impact of the rule on
the state or its residents; and (5) any other information which the
commission may request or which may be required by law.
(b) At its discretion, the board may meet the filing requirement of
subsection (a) of this section using either of the following
methods:
(1) By submitting twenty copies of the proposed rule to the
Legislative Oversight Commission on Education Accountability at its
offices or at a regular meeting of the commission; or
(2) By submitting the proposed rule electronically to the
Legislative Oversight Commission on Education Accountability.
Proposed rules submitted electronically shall be transmitted in a timely manner, shall contain all required information and shall be
compatible with computer applications in use by the Legislative
Oversight Commission on Education Accountability.
(c) The commission shall review each proposed legislative rule and,
in its discretion, may hold public hearings thereon. Such review
shall include, but not be limited to, a determination of:
(1) Whether the board has exceeded the scope of its statutory
authority in approving the proposed legislative rule;
(2) Whether the proposed legislative rule is in conformity with the
legislative intent of the statute which the rule is intended to
implement, extend, apply, interpret or make specific;
(3) Whether the proposed legislative rule conflicts with any other
provision of this code or with any other rule adopted by the same
or a different agency;
(4) Whether the proposed legislative rule is necessary to fully
accomplish the objectives of the statute under which the proposed
rule was promulgated;
(5) Whether the proposed legislative rule is reasonable, especially
as it affects the convenience of the general public or of persons
particularly affected by it;
(6) Whether the proposed legislative rule could be made less
complex or more readily understandable by the general public; and
(7) Whether the proposed legislative rule was promulgated in
compliance with the requirements of this article and with any
requirements imposed by any other provision of this code.
(d) After reviewing the legislative rule, the commission may recommend to the board any changes needed to comply with the
legislative intent of the statute upon which the rule is based or
otherwise to modify the activity subject to the rule, or may make
any other recommendations to the board as it considers appropriate.
(e) When the board finally adopts a legislative rule, the board
shall submit to the Legislative Oversight Commission on Education
Accountability at its offices or at a regular meeting of the
commission six copies of the rule as adopted by the board. The
board, at its discretion, may meet the filing requirement contained
in this subsection by submitting the legislative rule in electronic
format to the Legislative Oversight Commission on Education
Accountability. Rules submitted electronically shall be transmitted
in a timely manner and shall be compatible with computer
applications in use by the Legislative Oversight Commission on
Education Accountability.
(f) After reviewing the legislative rule, the commission may
recommend to the Legislature any statutory changes needed to
clarify the legislative intent of the statute upon which the rule
is based or may make any other recommendations to the Legislature
as it considers appropriate.§29A-3B-10. Emergency legislative rules; procedure for
promulgation; definition.
(a) The board may, without hearing, find that an emergency exists
requiring that emergency rules be promulgated and promulgate the
same in accordance with this section. Such emergency rules,
together with a statement of the facts and circumstances constituting the emergency, shall be filed in the State Register
and shall become effective immediately upon such filing. Such
emergency rules may adopt, amend or repeal any legislative rule,
but the circumstances constituting the emergency requiring such
adoption, amendment or repeal shall be stated with particularity
and be subject to de novo review by any court having original
jurisdiction of an action challenging their validity.
(b) The board shall file ten copies of the rules and of the
required statement with the Legislative Oversight Commission on
Education Accountability. At its discretion, the board may meet the
filing requirement contained in this subsection by submitting the
emergency rule electronically to the Legislative Oversight
Commission on Education Accountability. Proposed rules submitted
electronically shall be transmitted in a timely manner, shall
contain all required information and shall be compatible with
computer applications in use by the Legislative Oversight
Commission on Education Accountability.
(c) An emergency rule shall be effective for not more than fifteen
months and shall expire earlier if any of the following occurs:
(1) The board has not previously filed and fails to file a notice
of public hearing on the proposed rule within sixty days of the
date the proposed rule was filed as an emergency rule; in which
case the emergency rule expires on the sixty-first day.
(2) The board has not previously filed and fails to file the
proposed rule with the Legislative Oversight Commission on
Education Accountability within one hundred eighty days of the date the proposed rule was filed as an emergency rule; in which case the
emergency rule expires on the one hundred eighty-first day.
(3) The board adopts a legislative rule dealing with substantially
the same subject matter since such emergency rule was first
promulgated and in which case the emergency rule expires on the
date the authorized rule is made effective.
(d) Any amendment to an emergency rule made by the board shall be
filed in the State Register and does not constitute a new emergency
rule for the purpose of acquiring additional time or avoiding the
expiration dates in subdivision (1), (2) or (3), subsection (c) of
this section.
(e) Once an emergency rule expires due to the conclusion of fifteen
months or due to the effect of subdivision (1), (2) or (3),
subsection (c) of this section, the board may not refile the same
or similar rule as an emergency rule.
(f) Emergency legislative rules currently in effect under the prior
provisions of this section may be refiled under the provisions of
this section.
(g) The provision of this section shall not be used to avoid or
evade any provision of this article or any other provisions of this
code, including any provisions for legislative review of proposed
rules. Any emergency rule promulgated for any such purpose may be
contested in a judicial proceeding before a court of competent
jurisdiction.
(h) The Legislative Oversight Commission on Education
Accountability may review any emergency rule to determine: (1) Whether the board has exceeded the scope of its statutory authority
in promulgating the emergency rule; (2) whether there exists an
emergency justifying the promulgation of such rule; and (3) whether
the rule was promulgated in compliance with the requirements and
prohibitions contained in this section. The commission may
recommend to the board, the Legislature or the Secretary of State
such action as it may deem proper.§29A-3B-11. Legislative review of procedural rules, interpretive
rules and existing legislative rules.
The legislative oversight commission on education accountability
may review any procedural rules, interpretive rules or existing
legislative rules and may make recommendations concerning such
rules to the Legislature, or to the board, or to both the
Legislature and the board.§29A-3B-12. Prior rules.
Any rule lawfully promulgated prior to the effective date of this
chapter shall remain in full force and effect until:
(1) Such rule is expressly made ineffective by the provisions of
this chapter; or
(2) Such rule should expire by reason of failure to refile the same
as provided in section five of article two, or expires pursuant to
its own terms and provisions lawfully made before the effective
date of this section; or
(3) Such rule is repealed by the lawful act of the board, in
conformity with this chapter; or
(4) Such rule is invalidated by an act of the Legislature or the
force and effect of another law.ARTICLE 4. DECLARATORY RULINGS AND DECLARATORY JUDGMENTS.
§29A-4-1. Declaratory rulings by agencies.
On petition of any interested person, an agency may issue a
declaratory ruling with respect to the applicability to any person,
property or state of facts of any rule or statute enforceable by
it. A declaratory ruling, if issued after argument and stated to be
binding, is binding between the agency and the petitioner on the
state of facts alleged, unless it is altered or set aside by a
court, but it shall not be binding on any other person. Such ruling
is subject to review before the court and in the manner hereinafter
provided for the review of orders or decisions in contested cases.
Each agency may prescribe by rule the form for such petitions and
the procedure for their submission, consideration and disposition.§29A-4-2. Declaratory judgment on validity of rule.
(a) Any person, except the agency promulgating the rule, may have
the validity of any rule determined by instituting an action for a
declaratory judgment in the circuit court of Kanawha county, West
Virginia, when it appears that the rule, or its threatened
application, interferes with or impairs or threatens to interfere
with or impair, the legal rights or privileges of the plaintiff or
plaintiffs. The agency shall be made a party to the proceeding. The
declaratory judgment may be rendered whether or not the plaintiff
or plaintiffs has or have first requested the agency to pass upon the validity of the rule in question.
(b) The court shall declare the rule invalid if it finds that the
rule violates constitutional provisions or exceeds the statutory
authority or jurisdiction of the agency or was adopted without
compliance with statutory rule-making procedures or is arbitrary or
capricious, or that, in the case of a rule adopted pursuant to
section five, article three of this chapter, action under said
section five was not justified.
(c) When the invalidity of a rule has been so declared, the agency
shall, within thirty days after such declaratory judgment has been
entered, acquiesce therein and modify or rescind such invalidated
rule in accord with the requirement of such declaratory judgment
unless the agency promptly, and in any event within such thirty-day
period, notifies the plaintiff or plaintiffs of its intention to
apply for an appeal to the supreme court of appeals from such
declaratory judgment pursuant to section one, article six of this
chapter. In the event such agency shall thereafter make timely
application for such appeal, the acquiescence of the agency in the
invalidity of such rule shall not be required until thirty days
after timely applications for such appeal have been refused or
within thirty days after the appeal has been dismissed or otherwise
disposed of in the supreme court of appeals by an affirmance of the
judgment invalidating said rule.ARTICLE 5. CONTESTED CASES.
§29A-5-1. Notice required; hearing; subpoenas; witness fees, etc.;
depositions; records.
(a) In any contested case all parties shall be afforded an
opportunity for hearing after at least ten days' written notice.
The notice shall contain the date, time and place of the hearing
and a short and plain statement of the matters asserted. If the
agency is unable to state the matters in detail at the time the
notice is served, the initial notice may be limited to a statement
of the issues involved. Thereafter, upon application a more
definite and detailed statement shall be furnished. An opportunity
shall be afforded all parties to present evidence and argument with
respect to the matters and issues involved. The required notice
must be given as specified in section two, article seven of this
chapter. All of the testimony and evidence at any such hearing
shall be reported by stenographic notes and characters or by
mechanical means. All rulings on the admissibility of testimony and
evidence shall also be reported. The agency shall prepare an
official record, which shall include reported testimony and
exhibits in each contested case, and all agency staff memoranda and
data used in consideration of the case, but it shall not be
necessary to transcribe the reported testimony unless required for
purposes of rehearing or judicial review. Informal disposition may
also be made of any contested case by stipulation, agreed
settlement, consent order or default. Each agency shall adopt
appropriate rules of procedure for hearing in contested cases.
(b) For the purpose of conducting a hearing in any contested case,
any agency which now has or may be hereafter expressly granted by
statute the power to issue subpoenas or subpoenas duces tecum or any member of the body which comprises such agency may exercise
such power in the name of the agency. Any such agency or any member
of the body which comprises any such agency may exercise such power
in the name of the agency for any party upon request. Under no
circumstances shall this chapter be construed as granting the power
to issue subpoenas or subpoenas duces tecum to any agency or to any
member of the body of any agency which does not now by statute
expressly have such power. When such power exists, the provisions
of this section shall apply. Every such subpoena and subpoena duces
tecum shall be served at least five days before the return date
thereof, either by personal service made by any person over
eighteen years of age or by registered or certified mail, but a
return acknowledgment signed by the person to whom the subpoena or
subpoena duces tecum is directed shall be required to prove service
by registered or certified mail. All subpoenas and subpoenas duces
tecum shall be issued in the name of the agency, as aforesaid, but
any party requesting their issuance must see that they are properly
served. Service of subpoenas and subpoenas duces tecum issued at
the instance of the agency shall be the responsibility of the
agency. Any person who serves any such subpoena or subpoena duces
tecum shall be entitled to the same fee as sheriffs who serve
witness subpoenas for the circuit courts of this state; and fees
for the attendance and travel of witnesses shall be the same as for
witnesses before the circuit courts of this state. All such fees
shall be paid by the agency if the subpoena or subpoena duces tecum
were issued, without the request of an interested party, at the instance of the agency. All such fees related to any subpoena or
subpoena duces tecum issued at the instance of an interested party
shall be paid by the party who asks that such subpoena or subpoena
duces tecum be issued. All requests by interested parties for
subpoenas and subpoenas duces tecum shall be in writing and shall
contain a statement acknowledging that the requesting party agrees
to pay such fees. Any such agency may compel the attendance of
witnesses and the production of books, records or papers in
response to such subpoenas and subpoenas duces tecum. Upon motion
made promptly and in any event before the time specified in a
subpoena duces tecum for compliance therewith, the circuit court of
the county in which the hearing is to be held, or the circuit court
in which the subpoena ducestecum was served, or the judge of either
such court in vacation, may grant any relief with respect to such
subpoena duces tecum which either such court, under the West
Virginia Rules of Civil Procedure for Trial Courts of Record, could
grant, and for any of the same reasons, with respect to a subpoena
duces tecum issued from either such court. In case of disobedience
or neglect of any subpoena or subpoena duces tecum served on any
person, or the refusal of any witness to testify to any matter
regarding which he may be lawfully interrogated, the circuit court
of the county in which the hearing is being held, or the judge
thereof in vacation, upon application by such agency or any member
of the body which comprises such agency, shall compel obedience by
attachment proceedings for contempt as in the case of disobedience
of the requirements of a subpoena or subpoena duces tecum issued from such circuit court or a refusal to testify therein. Witnesses
at such hearings shall testify under oath or affirmation.
(c) Evidentiary depositions may be taken and read as in civil
actions in the circuit courts of this state.
(d) All hearings shall be conducted in an impartial manner. The
agency, any member of the body which comprises the agency, or any
hearing examiner or other person permitted by statute to hold any
such hearing for such agency, and duly authorized by such agency so
to do, shall have the power to: (1) Administer oaths and
affirmations, (2) rule upon offers of proof and receive relevant
evidence, (3) regulate the course of the hearing, (4) hold
conferences for the settlement or simplification of the issues by
consent of the parties, (5) dispose of procedural requests or
similar matters, and (6) take any other action authorized by a rule
adopted by the agency in accordance with the provisions of article
three of this chapter.
(e) Except where otherwise provided by statute, the hearing in any
contested case shall be held in the county selected by the agency.

(f) Notwithstanding the provisions of subparagraph (a) of this
section, upon request to the agency from any party to the hearing
all reported testimony and evidence at such hearing shall be
transcribed, and a copy thereof furnished to such party at his
expense. The agency shall have the responsibility for making
arrangements for the transcription of the reported testimony and
evidence, and such transcription shall be accomplished with all dispatch.§29A-5-2. Rules of evidence; taking notice of facts; correction of
transcript.
(a) In contested cases irrelevant, immaterial, or unduly
repetitious evidence shall be excluded. The rules of evidence as
applied in civil cases in the circuit courts of this state shall be
followed. When necessary to ascertain facts not reasonably
susceptible of proof under those rules, evidence not admissible
thereunder may be admitted, except where precluded by statute, if
it is of a type commonly relied upon by reasonably prudent men in
the conduct of their affairs. Agencies shall be bound by the rules
of privilege recognized by law. Objections to evidentiary offers
shall be noted in the record. Any party to any such hearing may
vouch the record as to any excluded testimony or other evidence.
(b) All evidence, including papers, records, agency staff memoranda
and documents in the possession of the agency, of which it desires
to avail itself, shall be offered and made a part of the record in
the case, and no other factual information or evidence shall be
considered in the determination of the case. Documentary evidence
may be received in the form of copies or excerpts or by
incorporation by reference.
(c) Every party shall have the right of cross-examination of
witnesses who testify, and shall have the right to submit rebuttal
evidence.
(d) Agencies may take notice of judicially cognizable facts. All
parties shall be notified either before or during hearing, or by reference in preliminary reports or otherwise, of the material so
noticed, and they shall be afforded an opportunity to contest the
facts so noticed.
(e) Upon motion in writing served by any party as notice may be
served pursuant to section two, article seven of this chapter and
therein assigning error or omission in any part of any transcript
of the proceedings had and testimony taken at any such hearing, the
agency shall settle all differences arising as to whether such
transcript truly discloses what occurred at the hearing and shall
direct that the transcript be corrected and revised in the respects
designated by the agency, so as to make it conform to the whole
truth.§29A-5-3. Orders or decisions.
Every final order or decision rendered by any agency in a contested
case shall be in writing or stated in the record and shall be
accompanied by findings of fact and conclusions of law. Prior to
the rendering of any final order or decision, any party may propose
findings of fact and conclusions of law. If proposed, all other
parties shall be given an opportunity to except to such proposed
findings and conclusions, and the final order or decision shall
include a ruling on each proposed finding. Findings of fact, if set
forth in statutory language, shall be accompanied by a concise and
explicit statement of the underlying facts supporting the findings.
A copy of the order or decision and accompanying findings and
conclusions shall be served upon each party and his attorney of
record, if any, in person or by registered or certified mail.§29A-5-4. Judicial review of contested cases.
(a) Any party adversely affected by a final order or decision in a
contested case is entitled to judicial review thereof under this
chapter, but nothing in this chapter shall be deemed to prevent
other means of review, redress or relief provided by law.
(b) Proceedings for review shall be instituted by filing a
petition, at the election of the petitioner, in either the circuit
court of Kanawha County, West Virginia or in the circuit court of
the county in which the petitioner or any one of the petitioners
resides or does business, or with the judge thereof in vacation,
within thirty days after the date upon which such party received
notice of the final order or decision of the agency. A copy of the
petition shall be served upon the agency and all other parties of
record by registered or certified mail. The petition shall state
whether the appeal is taken on questions of law or questions of
fact, or both. No appeal bond shall be required to effect any such
appeal.
(c) The filing of the petition shall not stay enforcement of the
agency order or decision or act as a supersedeas thereto, but the
agency may stay such enforcement, and the appellant, at any time
after the filing of his petition, may apply to such circuit court
for a stay of or supersedeas to such final order or decision.
Pending the appeal, the court may grant a stay or supersedeas upon
such terms as it deems proper.
(d) Within fifteen days after receipt of a copy of the petition by
the agency, or within such further time as the court may allow, the agency shall transmit to such circuit court the original or a
certified copy of the entire record of the proceeding under review,
including a transcript of all testimony and all papers, motions,
documents, evidence and records as were before the agency, all
agency staff memoranda submitted in connection with the case, and
a statement of matters officially noted; but, by stipulation of all
parties to the review proceeding, the record may be shortened. The
expense of preparing such record shall be taxed as a part of the
costs of the appeal. The appellant shall provide security for costs
satisfactory to the court. Any party unreasonably refusing to
stipulate to limit the record may be taxed by the court for the
additional costs involved. Upon demand by any party to the appeal,
the agency shall furnish, at the cost of the party requesting same,
a copy of such record. In the event the complete record is not
filed with the court within the time provided for in this section,
the appellant may apply to the court to have the case docketed, and
the court shall order such record filed.
(e) Appeals taken on questions of law, fact or both, shall be heard
upon assignments of error filed in the cause or set out in the
briefs of the appellant. Errors not argued by brief may be
disregarded, but the court may consider and decide errors which are
not assigned or argued. The court or judge shall fix a date and
time for the hearing on the petition, but such hearing, unless by
agreement of the parties, shall not be held sooner than ten days
after the filing of the petition, and notice of such date and time
shall be forthwith given to the agency.
(f) The review shall be conducted by the court without a jury and
shall be upon the record made before the agency, except that in
cases of alleged irregularities in procedure before the agency, not
shown in the record, testimony thereon may be taken before the
court. The court may hear oral arguments and require written
briefs.
(g) The court may affirm the order or decision of the agency or
remand the case for further proceedings. It shall reverse, vacate
or modify the order or decision of the agency if the substantial
rights of the petitioner or petitioners have been prejudiced
because the administrative findings, inferences, conclusions,
decision or order are:
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the
agency; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and
substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion.
(h) The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals of this state in accordance with the provisions of section
one, article six of this chapter.§29A-5-5. Exceptions.
The provisions of this article shall not apply to the workers'
compensation fund, the bureau of employment programs, the state tax
commissioner, the state road commissioner, the state road
commission, and the teachers' retirement board.ARTICLE 6. APPEALS.
§29A-6-1. Supreme court of appeals.
Any party adversely affected by the final judgment of the circuit
court under this chapter may seek review thereof by appeal to the
supreme court of appeals of this state, and jurisdiction is hereby
conferred upon such court to hear and entertain such appeals upon
application made therefor in the manner and within the time
provided by law for civil appeals generally.
ARTICLE 7. GENERAL PROVISIONS.
§29A-7-1. Limitations on certain administrative powers.
No process, requirement of a report, inspection, or other
investigative act or demand shall be issued, made, or enforced in
any manner or for any purpose except as authorized by law.§29A-7-2. Notice generally.
Whenever an agency or person is authorized or required to give any
notice under this chapter, unless a different method of giving such
notice is otherwise expressly permitted or prescribed, such notice
shall be given either by personal delivery thereof to the agency or
person to be so notified, or by depositing such notice in the
United States mail, postage prepaid, in an envelope addressed to
such agency or person at the last-known address of such agency or person. Proof of the giving of notice in either such manner may be
made by the affidavit of any officer or assistant or employee of
the agency, or by affidavit of any person over eighteen years of
age, naming the agency or person to which or to whom such notice
was given and specifying the time, place and manner of the giving
thereof.§29A-7-3. Repeals; subsequent legislation.
All acts or parts of acts which are inconsistent with the
provisions of this chapter are hereby repealed to the extent of
such inconsistency, but such repeal shall not affect pending
proceedings. No subsequent legislation shall be held to supersede
or modify the provisions of this chapter except to the extent that
such legislation shall do so specifically and expressly.§29A-7-4. Construction and effect; severability of provisions.
Nothing in this chapter shall be held to limit or repeal additional
requirements imposed by statute or otherwise recognized by law. No
procedural requirement shall be mandatory as to any agency
proceeding initiated prior to the effective date of this chapter.
If any provision of this chapter or the application thereof to any
person or circumstance is held invalid, such invalidity shall not
affect other provisions or applications of the chapter which can be
given effect without the invalid provision or its application, and
to this end the provisions of this chapter are declared to be
severable.§29A-7-5. Interpretive rules abolished.All currently effective interpretive rules are invalid as of July
1, 2013."